Strengthening corporate accountability in health
and social care
Consultation response from Leonard Cheshire
Disability (September 2013)
About Leonard Cheshire Disability
At Leonard Cheshire Disability we work for a society in which everyone is
equally valued. We believe that disabled people should have the freedom to
live their lives the way they choose – with the opportunity and support to live
independently, to contribute economically and to participate fully in society.
We are one of the UK's largest voluntary sector providers of services for
disabled people with over 270 services across the UK. We have 110 services
in England regulated by the Care Quality Commission (CQC) including care
homes, care homes with nursing and homecare services. We aim to maximise
personal choice and independence for people with disabilities and all of our
services are designed to meet the needs and priorities of the people who use
them.
This response focuses on those areas where we have a specific expertise
and knowledge, both as the UK’s largest voluntary sector provider of social
care services to disabled people and as a leading disability campaigning
charity. Above all our starting point in response to any consultation on adult
social care will always be whether proposals will improve the safety and
quality of care and support for disabled people.
We have focused this submission on questions 2, 3 and 4 of the consultation
document and grouped our comments and feedback accordingly. Where we
feel that these proposals could be improved or developed further we have
made proposals to this effect.
Summary
Safety and quality should be the foremost concern of every single person
working in health and social care, from the front-line to Board level, and
should come before all other considerations in the leadership and conduct of
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service providers. People working in health and social care have a unique and
heavy responsibility for the health and wellbeing of thousands of people,
many of them the most vulnerable in our society. As such, it is vital that
everyone in the sector is clear about their individual responsibilities and
accountabilities and that they have the right skills, knowledge and experience
to discharge these to the best of their ability.
Leonard Cheshire Disability fully supports all measures to ensure that
instances of abuse, neglect and wilful misconduct in health and social care
settings are treated seriously and dealt with swiftly and effectively. We are
therefore very supportive of these proposals to strengthen and increase
corporate accountability. We hope this will support the continual reduction of
abuse and neglect by ensuring that all providers have governance systems in
place which support and champion safety and quality, and that if failures do
occur, the right people are robustly held to account for these failings.
Social care is fundamentally about relationships between people; those
receiving care and support and those providing it. First and foremost, it is vital
to acknowledge and celebrate the enormous commitment of the vast majority
of staff in the sector who continually go above and beyond the call of duty to
deliver high quality, personalised care which enriches and improves people’s
lives. For the sector to move forward and develop, and to ensure that care
workers’ commitment and professional self-worth are not jeopardised, it is
essential that we avoid generalised criticism of people’s intentions,
motivations, skill and dedication.
However, sometimes people do make mistakes and every day things will
happen which are less good than they should be. In rare cases people and
providers will fall very far short of the standards expected of them and their
mistakes will be catastrophic for individuals or whole groups. Even more
rarely these failings may be indicative of systemic failure. Where individuals or
corporate bodies act (or fail to act) in a way that leads to abuse or neglect, it is
right that they should face severe regulatory and, where appropriate, criminal
sanctions.
Our common goal must be to build a system which universally treats people
with dignity, respect and compassion and empowers them to live the lives
they choose. To achieve this it is vital that we have clear lines of
accountability and a system in which leaders promote and support an open
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and honest culture within their organisations, which encourages both the
sharing of good practice and the swift acknowledgement of mistakes when
they happen – always seeking to learn from them and improve.
Fit and proper persons test for directors
Q2: How should we define which positions the new requirements apply
to?
We believe that to execute their responsibilities effectively it is vital that
accountable leaders are directly connected with those for whom they are
responsible, with first-hand knowledge of the reality of the system at the front
line. There must be a clear, logical and identifiable line of accountability for
quality and safety throughout all provider organisations, from front line to
Board level, so that if failings do occur they can be dealt with swiftly and
effectively, with lessons learned and the right people held to account. We
have some concerns that, in their current form, these proposals risk
unintentionally undermining their intended outcome by diffusing accountability
too widely at Board level.
Improving these proposals
We are fully supportive of the principle of increased corporate accountability.
However, we would highlight that both private and voluntary sector providers
of health and social care operate within a very diverse range of governance
models and board structures, dependent on their size, location(s) and the
range of activities they carry out. As such we would recommend that these
proposals are considered in this context to ensure they will work effectively in
practice and fit flexibly with the varied range of governance models and board
structures currently in operation across the sector.
For example, while we are one of the largest voluntary sector providers of
health and social care in the UK, Leonard Cheshire Disability also has a wide
range of other core activities which are not all directly related to our regulated
activities. These include supporting disabled people to develop skills through
our employment, education, enterprise, health, volunteering and digital
inclusion projects and campaigning alongside disabled people to effect
change for the better and challenge unfairness in society. Internationally, we
are part of a global alliance of Leonard Cheshire charities working to improve
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the lives of disabled people in 54 countries. As such, our current fourteen
trustees and seven executive directors have a diverse portfolio of individual
and collective responsibilities. While many of them have direct responsibility
for the safety and quality of our social care provision, some do not.
Q3: What considerations should be taken into account in applying the fit
and proper person test?
In common with the vast majority of providers in the sector, we already take
comprehensive steps to ensure that our directors are fit and proper people for
the posts they hold. We have some concerns that the formulation of an
entirely separate fit and proper test risks duplicating administrative
responsibilities and placing unnecessary pressure on the already stretched
resources of many provider organisations; resources which could otherwise
be directed towards developing and continually improving the quality and
safety of service provision.
Improving these proposals
We hope that to avoid this, the fit and proper persons test for directors will
utilise the existing programme of checks already carried out by most
employers in the sector.
What considerations should be taken into account in applying the fit
and proper person test?
Our proposal
We would suggest that to demonstrate that directors have satisfied the
requirements of the fit and proper person test providers should be required to
evidence some or all of the following:

Recruitment checks (including competency based assessments,
interviews and professional references);

Proof of relevant professional and academic qualifications and/or
membership of professional bodies (where applicable);

Disclosure & Barring Service checks (Enhanced with Barred List checks
where appropriate); and

Checks against the Disqualified Directors Register (Companies House)
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and Register of Removed Trustees (Charity Commission) (as
appropriate).
We feel that together these checks provide a comprehensive picture of an
individual’s competence and capability, general and financial background
and honesty and integrity and will be enough to ensure that unsuitable
directors cannot continue in or move to new roles within the system.
Further comments
In relation to the comments and suggestions we have made above, following
this consultation we would appreciate further clarification on the following
points:

Will all directors undergoing the fit and proper persons test have to
demonstrate a detailed understanding of health and social care (including
regulatory responsibilities) regardless of their specific responsibilities
within the organisation?

Will this test apply to directors whose role is completely unrelated to the
provision of regulated activities?

Will providers have to demonstrate that directors have passed the fit and
proper test before they can take up their post, or will there (as we would
recommend) be a grace period to allow for induction and other appropriate
training and development to take place?
In addition, we would like to see some clarification around how the role of the
nominated individual will fit into the future hierarchy of accountability. Current
regulations state that the nominated individual should be ‘an employed
director, manager or secretary of the organisation’ with ‘responsibility for
supervising the management of the regulated activity’. However, paragraph
1.1 of the consultation document, which sets out the existing hierarchy of
accountability, makes no mention of the role of the nominated individual. As
such, we would appreciate some clarification around how it is intended that
this role will work in future and how it will fit with other responsibilities.
We would also like to see more detailed information on the right of appeal for
providers and directors who have been removed from post, so that we can
comment further on this specific aspect of the proposals.
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Other actions to address the issue of corporate accountability
Q4: Do the proposed introduction of fundamental standards and a new
fit and proper person test, together with existing legislation, set an
adequate framework for holding providers to account for unsafe care?
We welcome the introduction of a set of fundamentals below which standards
of care must never fall and fully support tough penalties for those who fail to
comply with these and cause harm as a result. They are an important step
towards raising standards in health and social care by ensuring that it is
defined by what people using services want and are entitled to.
We particularly welcome the proposal that CQC will no longer have to issue a
warning notice in advance of prosecution where there has been a clear and
serious failure to meet basic standards of care. We hope that this will ensure
that individuals and corporate bodies are more robustly held to account and
do not have the same opportunity to mask and minimise appalling failures as
they have done under the current system.
Providing that the existing legal framework is applied robustly, effectively and
consistently, we agree that this should be adequate to ensure that providers
and individuals are properly held to account for the provision of poor quality
and/or unsafe care. We hope this will reinforce the seriousness of abuse and
neglect and ensure that providers take their corporate responsibilities
seriously.
Conclusion
We broadly welcome these proposals and fully support all moves to increase
quality and safety in adult social care. We are grateful for the opportunity to
comment on them and hope that our feedback will be helpful in shaping the
way that health and social care is regulated and monitored in future.
We look forward to seeing more detailed proposals alongside the publication
of the revised regulations in the autumn and we will comment in more detail at
this point.
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For more information on any of the issues raised in this response please
contact:
Alice Mitchell-Pye
Policy and Campaigns Officer (Operations)
Email: alice.mitchell-pye@LCDisability.org
Tel: 020 3242 0229
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