Transcript What is a Supported Living Service?

SUPPORTED LIVING – LEGAL UPDATE
PETER GROSE
Head of Healthcare
Lester Aldridge LLP
What is a Supported Living Service?
“SLS are where people live in their own home and
receive care or support to promote their
independence. If there is genuine separation
between the care and the accommodation, the
care they receive is regulated by CQC but the
accommodation is not.”
- New CQC Guidance for SL Providers
February 2011.
What Personal Care Requires
Registration under HSCA 08? – 1
1. Physical assistance given to someone where he is
living
(a)
(b)
(c)
(d)
(e)
(f)
Eating or drinking (inc.parenteral nutrition)
Toileting
Washing/bathing
Dressing
Oral care
Skin/hair/nail care
(exc. by Chiropodist/podiatrist)
What Personal Care Requires
Registration under HSCA 08? – 2
2. Prompting together with supervision re any of the above
where that person is unable to make a decision for
themselves in relation to performing such an activity
without such prompting and supervision.
HSCA (Regulated Activities) Regulations 2010 Reg.2
Definition
Criminal Offences under HSCA 08
1. Obligation to register regulated activities
2. Criminal offence under S10(1) HSCA 2008 to carry out
regulated activity without being registered.
3. Crucial Distinction between Provision of Personal Care
and Provision of Accommodation and Care
- Regulated Activities Regs 2010 – Sch 1. paras 1 +2
The “Alternative Futures” cases 2004/5:
Court of Appeal decides
- Valid assured tenancies will not automatically mean the
establishment is not a care home
- Whether an establishment provides accommodation
together with personal care is essentially a question of
fact
- Separation of care provider from accommodation
provider does not mean that care home does not exist.
CSCI Guidance 2008 - 1
Indicators that care and accommodation not being provided
together:
1. Separate providers who do not need to “co-ordinate” to
operate the service
2. Genuine choice of care provider
3. Ability to exclude entry (including carers)
4. Ability to retain the tenancy even if the care service is no
longer required
5. Ability to assign the tenancy eg to a surviving spouse
6. The arrangements permit separate contracts for
accommodation and for care
CSCI Guidance 2008 – 2
Other points to consider on Deregistration
- Emphasis on “informed choice” with a range of options
(CST in “Alternative Futures”)
- Options must be put in a neutral straightforward and
meaningful way
- Must involve advocacy services (including IMCAs)
CQC Guidance for Inspectors 2008
In assessing whether supported living is really
being provided, 3 vital questions:
1. Is personal care provided or available?
- if so, at what level?
2. Is this the person’s own home?
3. Is this an establishment where care and
accommodation are provided together ie a care
home?
Is Personal Care Provided or Available
– Documentation – What do care records and staff
contracts state?
– What do service users state about level of service
provided?
– What are other people’s perceptions of level of care
provided eg health professionals, relatives etc?
– Points to consider – Giving or prompting the taking of
medication or the use of restraint do not in themselves
indicate registrable personal care being given
Is this the Person’s own Home?
– Documentation – Choice eg Freedom to choose care
provider; freedom to remain even if no longer need care
service
– Discussions with people using the service eg do they
really have the right to refuse entry of carers or change
care providers; do they have choice as to how they run
their lives?
– What does the commissioner of the service understand
has been commissioned?
– What if Local Authority commissions package of support
through tendering process?
– If person does not want to receive care/support what
would happen?
Is this a Care Home?
– Is care and accommodation provided “together”?
– Importance of only exchanging information and
co-ordinating activities to support service user
– What do service users and other professionals
understand the arrangement to be?
– One organisation can provide both functions but
if there is “mutual reliance” then service likely to
be care home
– Is receiving accommodation dependent on
receiving care and vice versa?
The vital “3Ds”for lawful Supported
Living
– Deliberation
– Documentation
– Delivery
The G v E case 2010
1. Lack of mental capacity may make supported living
much more difficult to arrange
2. The need for proper medical assessments and consent
of the Court of Protection before making supported
living placements
3. DOLS does not apply to Supported Living
4. SL providers beware! E.g. Repayment of Housing
Benefits
5. Local authorities beware!
6. CQC beware!
7. Appeal to the Supreme Court pending
FEBRUARY 2011 DEVELOPMENTS
1. NDTI “Feeling Settled” Guide: Changing from
Registered Care Home to Supported Living
2.
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CQC Guidance for Supported Living Providers
Repeats previous guidance
More awareness of danger of LA Tendering Process
Mental Capacity – the need for a Court of Protection
Order
PETER GROSE
Head of Healthcare
Lester Aldridge LLP
[email protected]
01202 786163