1 December 2016

Recent Reports Highlight Key Issues in Regulating Elderly Care

By Catriona McMillan and Nayha Sethi

A recent investigation by the BBC has raised concerns regarding the treatment of individuals in the care home setting. This brings to the fore a number of ethical and legal issues which, considering the increase in ageing population, invite closer scrutiny.

Victoria Derbyshire’s investigation focused on the treatment of relatives of care home residents: as a result of complaining about how their elderly relatives had been treated, some relatives of care home residents reported that they were unfairly banned from visiting, having to resort to meeting their elderly relatives off the home’s premises, often accompanied by care workers.

But, in response to one particular case, a care home spokesperson issued the following statement: "I can confirm that during the time in question, the home followed all regulations set by CQC [Care Quality Commission] and all guidelines set by our local authority."[1]

The apparent mismatch of perceptions of care, as between relatives and care home providers, indicates that there are still ongoing challenges in this area for law and regulation. Broader questions are also raised about the ways in which a culture of implementation and respect for law and ethical obligations play a fundamental (and not necessarily always beneficial) role in shaping healthcare practice. This leaves us with important questions regarding the extent to which law can and/or should shape the contours of ‘care’. In the following we outline some key areas of legal and ethical inquiry in answer to this.

  •         Legislation is in place to ensure that adequate standards of care are maintained by care providers and managers, and by local authorities. For example, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 identifies fundamental standards to be met by registered persons, including those relating to: ‘person-centered care’, ‘dignity and respect’, the ‘need for consent’, and ‘good governance’[2]. The Care Act 2014 also identifies general responsibilities for local authorities, including the promotion of ‘dignity’, ‘domestic, family and personal relationships, and ‘protection from abuse and neglect.’[3] Nonetheless, the findings of the investigative report mentioned above raise questions about care home residents’ day-to-day experiences of living in a regulated environment.
  •      The Liminal Spaces Project uses the concept of liminality (a state of ‘in-between’, neither one, nor other)[4] to explore the roles and limits of the law in regulating health related issues. One way the lens of liminality might be helpful here is in framing care homes as sites of liminality and flux, both as institutions, and for those who spend time there in their respective roles. Liminality is central to the lives of residents, care workers and families involved, albeit in different ways. We can see, however, that apparently flexible modes of regulation might not always act as an adequate vehicle for achieving ‘care’, as ethical standard. Liminality may offer us the following insights and points for further investigation:
-   Those who live there may move between, or at time overlap categories, from resident, to patient, to acute patient, sometimes within a short space of time, and sometimes not at all – how can we better account for their experiences at different stages? 
-   In many cases elderly residents are often experiencing their own liminal state (as a resident/patient/acute patient/dying patient) be it with physical or mental health, especially in cases concerning cognitive degeneration. Their care requirements are thus not unchanging, and often ebb and flow with their condition (for example, those with memory disorders, like dementia, often have ‘good’ and ‘bad’ days): how do we accommodate these constantly changing (and at times conflicting) requirements?
  •     These questions focus of course on residents, but other important actors must also be considered; visiting family members can experience flux, particularly in an emotional sense. Some find the competing concerns of their relative’s health and independence troubling. What are the rights of family members? How do we avoid practice of relatives being banned from visiting their family members/fearing exclusion if they complain?
  •     The roles of care workers are not invariant; each patient often requires varying degrees of physical assistance and/or medical care – how do we support care workers with adequate skills and ethics of care to accommodate these needs?

Lastly, it is also worth noting that similar issues are arising in other areas of care. A recent BBC Panorama investigation revealed mistreatment of residents in nursing homes[5], including: leaving a resident on a bedpan, unattended for over 40 minutes; referring to a distressed patient with dementia as ‘naughty’ and refusing to hold her hand; ignoring requests from residents needing the bathroom for over 20 minutes; and failing to vet staff before allowing them to administer medication and care for residents.

All of this leads us to question the roles that statute and guidance (for example that given by the CQC) play here. What regulatory tools can be employed in order to ensure that standards are being met and monitored? What are the regulatory gaps here that need to be identified and how can they be filled? Are there better ways in which law, and indeed guidance can play a valuable role in promoting the ethic of ‘care’? These questions have inspired us to do further work in this area, which we hope to begin in the New Year.

Many thanks to Annie Sorbie for her invaluable advice and input.


References
[1] Sagnita Myska, ‘Care Homes Ban Relatives Who Complain’, 02/11/16, available at: http://www.bbc.co.uk/news/health-37825745 (last accessed 28/11/16)
[2] Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 ss2(9), (10), (11) and (17) respectively.
[3] Care Act 2014, ss1(2)(a), (g) and (c) respectively.
[4] Victor Turner, The Ritual Process: Structure and Anti-Structure (Aldine Transaction, 1969)
[5] While care homes and nursing homes both act as care accommodation, the latter differs from the former as they have registered nurses on duty at all times.

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