BACKGROUND AND CONTEXT

  1.  The Commission for Social Care Inspection (CSCI) was launched in April 2004 as the single inspectorate and regulator for social care in England. Since April 2007 CSCI has concentrated on encouraging improvements in adult social care services, responsibility for the inspection and regulation of most children's social care services having moved to Ofsted.

  2.  CSCI's main statutory functions are to:

—  carry out an annual performance assessment of councils with adult social services responsibilities and publish the results in the form of "star ratings";

—  register and regulate social care provider organisations—public, private, and voluntary—against national minimum standards and publish our findings;

—  publish an annual report to Parliament on the state of social care; and

—  carry our enforcement action where poor performance requires it.

  3.  Whilst many adults with learning disabilities live in the community, often with their parents, as at 31 March 2006 there were 57,587 places in homes registered with the Commission for younger adults with learning disabilities. On average, such homes are smaller than those for other groups, such as older people, with the average size of care homes overall now some 18 places. Around nine out of 10 care homes for adults aged 18-64, many of whom are people with learning disabilities, are in the private and voluntary sectors, with 25% of the total run by the voluntary sector, compared with 13% of homes for older people.

CSCI AND THE HUMAN RIGHTS ACT

  4.  CSCI has sought to adopt a human rights approach to its work. The inaugural meeting of the Commission in April 2004 formally resolved to adopt human rights principles. The first point in CSCI's statement of Vision and Values is that we will seek to put people who use social care services first and will speak and act in a way that respects people's rights and choices. In addition, our overarching Equalities and Diversity Strategy, published in August 2006, says that "In all that we do, we recognise and respect the human rights of those who use social care, provide it and regulate it."

  5.  Accordingly, rather than seeing human rights as a separate strand of activity, CSCI has endeavoured to weave the rights of individuals into the fabric of all that we do. In this way we aim to ensure that providers and commissioners consider an individual's rights a core aspect of social care and that people who use services are able to recognise the importance of their rights.

  6.  Moreover, whilst the Commission has not issued specific guidance to providers of services on the Human Rights Act, we believe that we deliver our positive duty to implement the Act through:

—  the application to regulated services of the HRA-compliant national minimum standards (and associated legally-binding Regulations)[168];

—  our performance assessment of councils with adult social services responsibilities;

—  disseminating information on the state of individual social care services in England; and

—  publishing the overall picture of the state of social care.

  7.  The Commission also believes that Article 8 of the HRA, which gives everyone the right to respect for their private and family life includes those in residential care, who rightly regard care homes as their own home. When we gave oral evidence to the JCHR in March 2007 as part of its earlier enquiry into the human rights of older people, this point was raised. We argued that, although the national minimum standards used when regulating services were HRA-compliant, there remained a loophole whereby those placed in private care homes by public authorities such as councils and PCTs (as opposed to those placed in homes run by councils) had no enforceable rights of redress under the Human Rights Act if it were held not to apply in such circumstances. We are aware that as a consequence of a recent House of Lords judgement, this problem remains unresolved.

ENFORCEMENT POWERS

  8.  The Care Standards Act 2000 sets out the enforcement powers available to the Commission in relation to regulated care services. We may take enforcement action if a service persistently fails adequately to meet the needs of people who use it—see sections on Cornwall and Merton below.

  9.  We can take a range of enforcement actions in order to improve poor or dangerous care practices when we find them. Our powers include urgent cancellation of registration in the most serious cases. We work with others to protect the interests of people who are at risk and cannot protect themselves and indeed recently signed an updated protocol on safeguarding adults with the Association of Directors of Adult Social Services and the Association of Chief Police Officers.

  10. We seek to enforce the law in a way that is:

—  Fair and non-discriminatory.

—  Efficient and effective.

—  Transparent.

—  Proportionate (to the quality of care and approach to improvement).

—  Consistent across our organisation.

  11.  Guidance to our staff on our enforcement policy makes specific reference to human rights, stating that "We will make sure that the improvements we require promote equality and protect all people's human rights and choices."

"INSPECTING FOR BETTER LIVES"—PUTTING PEOPLE WHO USE SERVICES FIRST

  12.  The Commission recognises that, despite being HRA compliant, the National Minimum Standards do not always capture what matters most to people. They are framed more in terms of inputs and processes than outcomes. The Commission is therefore developing approaches that focus more strongly on outcomes for people.

  13.  For example, CSCI is modernising the way it regulates services, through its "Inspecting for Better Lives" programme. We have adopted a proportionate and risk-based approach to regulation. This enables us to focus more attention on poorer performers. Our new inspection methodologies are supported by guidance for inspectors on assessment (called Key Lines of Regulatory Assessment) which guide inspectors on how to look at, for instance, aspects of services related to the dignity, respect and human rights of those in receipt of services, whether in care homes or through domiciliary care agencies. People with learning disabilities should particularly benefit from our more accessible inspection reports and methods which focus on person-centred planning.

WORKING WITH COUNCILS

  14.  The Commission is also developing new methodologies for inspecting and assessing local council social services for adults which reflect the importance of dignity and safeguarding—one of the Department of Health's key outcome challenges. The proposed methodology will be designed within the overall system which delivers judgments in the Annual Performance Assessment of councils.

REPORTING ON THE STATE OF SOCIAL CARE

  15.  CSCI also has a statutory duty to report directly to Parliament annually on the performance of social care services in England. CSCI's most recent report to Parliament, The State of Social Care in England 2005-06, was published in December 2006. The report uses the findings from CSCI's inspections and assessment activity to describe how far trends in social care have changed over the year (2005-06), looks in depth at commissioning by councils and support provided by family carers and provides an overview of the current state of social care across public, voluntary and private sectors.

SAFEGUARDING ADULTS FROM ABUSE

  16.  Abuse as described in the DH's "No Secrets" guidance "is a violation of an individual's human and civil rights by any person or persons". It may be a single act or repeated acts and can take the form of physical abuse, sexual abuse, psychological abuse, financial or material abuse, neglect and acts of omission and discriminatory abuse. The guidance also refers to institutional abuse and provides the following example:

"Neglect and poor professional practice also need to be taken into account. This may take the form of isolated incidents of poor or unsatisfactory professional practice, at one end of the spectrum, through to pervasive ill treatment or gross misconduct at the other. Repeated incidents of poor care may be an indication of serious problems and is sometimes referred to as institutional abuse."

  17.  CSCI has a very clear focus on ensuring that people who use services are properly safeguarded from abuse by those who commission and manage those services. As well as our regulation of services, which aims to raise standards of provision for people using services and which assesses how far providers are meeting a range of standards, including those relating to safeguarding issues, CSCI has undertaken larger scale investigations in response to serious complaints or where otherwise deemed necessary for the protection of people using services. One major example of this was the joint inquiry by CSCI and the Healthcare Commission into services at the Cornwall Partnership NHS Trust.

CORNWALL PARTNERSHIP NHS TRUST

  18.  In 2005 CSCI worked closely with the Healthcare Commission (HCC) on an investigation into the provision of services for people with learning disabilities at Cornwall Partnership NHS Trust.[169] The investigation was triggered by serious concerns from the East Cornwall Mencap Society in October 2004.

  19.  The findings of this investigation relate to the people living in the trust's three assessment and treatment centres and 45 supported living settings in the community in Cornwall. The investigation found that institutional abuse was widespread, preventing people from exercising their rights of independence, choice and inclusion. One person spent 16 hours a day tied to a bed or a wheelchair, for what staff wrongly believed to be their own protection. Another person told investigators that he had never chosen any of the places he had lived as an adult.

  20.  In more than two thirds of the sites visited, unacceptable restrictions were placed on the people who lived there. Internal and external doors were kept locked by staff to restrict the people who lived in settings in the community. In one home taps were removed from the bathroom and, in another, light fittings were taken out. Arrangements for the financial management of people's individual monies were of concern and referred to the NHS Counter Fraud and security Management service for their investigation.

  21.  During the investigation HCC & CSCI made referral of 40 individuals under the protection of vulnerable adults procedures to Cornwall Social Services Department (SSD). The Trust's investigation of these matters revealed systematic flaws in the local procedures, with managers investigating their own services. Cornwall SSD, as the lead agency for coordinating the vulnerable adults procedures, failed to coordinate inter-agency arrangements in accordance with the "No Secrets" guidance, in relation to an interagency policy, staff training in the policy and guidance.

Assessment and Care planning

  22.  The trust's services did not reflect the principles of rights, independence, choice and inclusion as set out in "Valuing People". The Assessment and treatment centres, run by the Trust, did not meet best practice as detailed in the "Mansell report":

—  Some services were provided in unacceptable environments, preventing effective care from being provided.

—  There were no effective guidelines for handling challenging behaviour or adherence to treatment programmes.

—  There was evidence of physical restraint being used illegally.

—  There was evidence of excessive use of pro re nata (PRN) medication to control unacceptable behaviour.

—  In two of the three treatment centres there were no treatment plans for those people residing there.

  23.  In the 45 community settings there was little evidence of community care assessments for residents by Cornwall SSD and it was therefore not possible to determine if people's needs were being met or receiving appropriate services. CSCI consider that these settings were being run as unregistered care homes. In addition:

—  Staff in these homes received inadequate training or management support to provide appropriate services for the residents.

—  There were few policies and procedures to run a supported living service; those policies in existence were not updated, reviewed or monitored.

—  Staff were recruited without Criminal Record Bureau checks (CRB).

—  People using the supported living services were offered no choice as to where and with whom they lived, or who provided their care.

—  The residents and their families had no access to an independent advocacy service, apart from the support of the East Cornwall Mencap Society.

Summary

  24.  The investigation report details the whole system failure involved in this case. This resulted in the denial of human rights to the people with learning disabilities to whom the authorities locally owed a duty of care. HCC advised the Secretary of State for Health that the Trust be placed on special measures and an independent change team was deployed to devise and implement an improvement plan to meet the recommendations of the investigation. This has resulted in:

—  the closure of the two adult treatment centres, assessment of all people in the treatment and community settings to determine their needs;

—  service redesign to meet assessed needs;

—  the development of an independent advocacy service to support people to make informed choices as to where they wish to live and with whom and what services they require to support them to live independently in the community;

—  the trust has registered as a domicillary care agency to support people living in the community; and

—  staff are being recruited, managed and trained to meet the needs of a modern service for people with learning disabilities.

  25.  HCC & CSCI will be conducting random inspections of a sample of the community settings to determine whether these are sheltered housing or still being run as unregistered care homes. The Trust is negotiating with a number of national care providers for the modernisation of the service. The outcome of these inspections will determine whether the Trust's special measures are lifted this autumn.

SUTTON AND MERTON PCT

  26.  In addition to Cornwall, another investigation, led by HCC with the support of CSCI, was carried out into the abuse of people with learning disabilities in Sutton and Merton PCT. The investigation was triggered by the PCT itself, which requested an independent investigation of its learning disability services, following their own concerns about a number of serious incidents.

  27.  The report, released by HCC in January 2007, showed that old fashioned and institutionalised services had led to the neglect and unacceptable care of people with learning disabilities in Sutton and Merton PCT. Evidence in the report highlighted living environments that were "impoverished and completely unsatisfactory". The investigation also found evidence that:

—  staff were poorly trained and lacked support;

—  residents experienced lack of stimulation and activity;

—  there was poor communication from staff members; and

—  failures in management and leadership were found at all levels of the Trust.

  28.  The Commission's report contained 25 recommendations and the Trust was required to prepare an action plan within nine weeks to address these recommendations. The Healthcare Commission will closely monitor the plan's implementation.

  29.  CSCI has taken other recent action in respect of learning disability services. In one case we obtained an emergency closure order against a small care home for people with learning disabilities run by an NHS Trust in Bedfordshire and we are currently seeking to cancel the registration of three similar services in Devon. We will not hesitate to use our powers to safeguard and promote the human rights of people in these situations.

  30.  We are also working jointly with the Healthcare Commission in:

—  supporting their audit of NHS learning disability services, following the Cornwall inquiry;

—  planning of the two Commissions' work on learning disability services, which takes place in a Joint Improvement Board; and

—  planning joint action, for 2008-09, in response to the audit findings, expected in the autumn of 2007.

THE DISABILITY RIGHTS COMMISSION

  31.  The Disability Rights Commission (DRC) conducted an inquiry into the physical health inequalities experienced by people with learning disabilities and/or mental health problems in 2005.[170] The report of this inquiry highlighted possible solutions to the problems raised, including action points for CSCI.

  32.  Many of these points have been or are being addressed. For example, CSCI worked with the Healthcare Commission on guidance in relation to the healthcare needs of people with learning disabilities and CSCI issued guidance for inspectors in relation to annual health checks, including what can be expected of providers under the current legislative framework. This guidance is aimed at ensuring that people with learning disabilities have equal access to a GP and access to options for healthy living.

  33.  However, one important point to note is that CSCI is statutorily obliged to operate within the relevant regulations. As a result we can only require action of providers if they are covered by those regulations. The Department of Health's review of these regulations and associated national minimum standards, which will no longer have an interim stage but which is still designed to equip the forthcoming health and adult social care regulator—Ofcare[171]—with a new set of health and care standards, needs to ensure that measures are incorporated into any new standards which properly safeguard the rights of people who use social care services.

"EXPERTS BY EXPERIENCE"

  34.  CSCI's "Experts by Experience" approach was developed to improve social care services by involving people who use them in our inspection process. An "Expert by Experience" is someone who uses services themselves and can use this experience to assist during inspections. We have "Experts by Experience" representing a range of social care needs, including Experts with specific experience of services for people with learning disabilities.

  35.  "Experts by Experience" take part in inspections, accompanying an inspector, and talk to the people who use the care service. They look at what happens in the service, discuss the service with the inspector and report on their findings. CSCI is using their expertise to influence how we inspect, and how we write our inspection reports and other publications. An Inspector reported: "I feel that the Expert had a clear understanding and awareness of how to obtain the required information to contribute to the inspection process. Service users felt relaxed talking to him. He was able to relate to people very well, He was able to observe non-verbal communication that validated his and my thoughts. The registered manager was very pleased that an Expert by Experience was at the inspection."

CONCLUSION

  36.  The Commission for Social Care Inspection seeks to put the people who use services at the very heart of what we do. The legislation that created the Commission is HRA compliant and we have embedded human rights principles into our work, from assessing providers against the National Minimum Standards, incorporating relevant principles into our methodology for assessing councils, to investigating abuse and taking enforcement action.

  37.  The Commission would welcome the opportunity to discuss these matters further with the Committee in the event of being called to give oral evidence.

July 2007

169   The full report can be downloaded from the CSCI website at http://www.csci.gov.uk/about_csci/press_releases/investigation_finds_widespread.aspx Back

170   The report of this inquiry can be downloaded from the DRC website at http://www.drc-gb.org/library/health_investigation.aspx Back

171   Ofcare is the body being planned to replace, subject to legislation, CSCI, the Healthcare Commission and the Mental Health Act Commission from April 2009. Back