Are we losing sight of care home resident rights?

A guest article by Simon Blackburn, the CEO of the RCPA

Informed choice, personal control and individual rights are all ‘hurrah’ phrases; ones that appear very difficult on the surface to argue against. But in the mixed economy of care homes for older people driven by a combination of private and state funded need, how do these manifest themselves?

Some might say that those ‘lucky’ enough to have their care funded in part or full by the local authority, but at a fixed rate, are likely to have less choice about the care home they live in. If a person in this position wants to live elsewhere for all sorts of reasons but at a higher fee, or if they wish to receive additional services from a care home, then the issue of informed choice and control get far more complicated. They may have to find someone else to meet the shortfall, or to purchase these extra services. The rules around these ‘top-ups’ are tortuous and warrant a separate discussion. Of course, if a person is not eligible for local authority funding, their choices relatively boundless.

At the same time, in a market starved of cash, care homes are increasingly having to make ends meet by finding a sustainable balance between private and state residents. As the amount that local authorities can afford to pay becomes increasingly squeezed and the cost of care continues to rise, this cross-subsidisation between state and private ‘beds’ some would say, is becoming increasingly difficult to justify.

This is one factor that led the Government in 2017 to commission the Competition and Markets Authority to investigate the fairness of the older persons’ care home market for its customers. The outcome of this inquiry, has been interesting. The current reliance by the market on privately paying individuals to prop it up, is identified by the CMA. It points to a typical 40% higher level of fees being paid by self-funders that local authorities for the same care.

In their final report, the CMA set out their observations about the unsustainability of the care home market, due to lack of local government funding and the cross-subsidisation that is taking place to address this. The report concludes that; ‘Given these concerns, we believe that significant reforms are needed to enable the sector to survive at current capacity levels and to grow to meet the expected substantial increase in care needs.’. In response, the CMA sets out several steps that local authorities need to take to address the problems.

At risk of us all losing sight here of the notions of informed choice, personal control and individual rights, the CMA has now produced some consumer rights guidelines for care homes setting out what information they should give to potential residents, how to ensure their contracts are fair and how to handle complaints fairly. This seems particularly important in a market where there are issues of vulnerability, family relationships and safeguarding.

The report sets out extensive guidance that includes;

  • Upfront information
  • Treating residents fairly
  • Quality of service
  • Complaints handling

Consumer law requires a care home to:

  • Treat residents and their representatives fairly. A care home must not mislead them or behave aggressively or otherwise act unfairly towards them.
    • This obligation applies before as well as after the resident has moved in or signed a contract with you.
    • It means that a care home must do certain things, such as provide key information upfront, so they can make informed decisions.
  • Ensure that contracts with residents are fair.
    • A care home must not put residents at an unfair disadvantage, by tilting the rights and responsibilities under the contract too much in your favour.
  • Deliver services with reasonable care and skill.
  • Have an effective procedure for dealing with complaints, which is easy to find, easy to use and fair.

There is a growing amount of independent advice on how to implement these guidelines. For example, Royds Withy King solicitors offer a ‘CMA-proof’ model contract and implementation advice.

However long it takes for market reforms to take place, care homes for older people would be wise to ensure that they protect themselves and their customers by taking heed of consumer law obligations as set out by this report.

Simon Blackburn has over thirty years experience of working in the health and social care sector. He has worked in service development and delivery in England and Wales and also teaches for The Open University. Working with care providers in the South West, the Registered Care Providers Association provides training and facilitates the exchange of information and ideas and fosters best practice amongst its members.