By Alison Wood | December 23, 2020
Whilst a number of our clients have been concerned about numbers of residents in care homes falling, there are times when new admissions are not wanted or when a provider must refuse a new admission into their home. This may occur for example, when staffing levels are insufficient to safely support the resident concerned, or the existing residents living in the home.
Throughout the pandemic, the government’s guidance in respect of admissions into care homes has changed. At the start of the pandemic many providers felt side-lined in favour of the NHS with operators feeling forced to accept residents with COVID-19 in order to free up NHS hospital beds, whilst also being faced with a lack of PPE and any adequate guidance on the matter. The position now is somewhat different and, whilst guidance issued has been criticised for being ambiguous and unhelpful, the position in respect of care home admissions does appear to be improving.
The government’s latest guidance on the admission and care of residents in a care home during COVID-19, updated on 26 November 2020, states that: “No care home will be forced to admit an existing or new resident to the care home if they are unable to cope with the impact of the person’s COVID-19 illness for the duration of the isolation period.” This may be because staffing levels are insufficient, or because they simply do not have the capabilities to ensure isolation of that person without leaving other residents at risk. This is the case whether the person is privately funded, funded by their local Clinical Commissioning Group or by their local authority.
Assessing the risk
The guidance, as its name suggests, is only guidance and thus whilst government guidance should generally be followed, if there is a good reason not to do so, providers are not obliged to blindly follow guidance in the same way they must abide by the law. Indeed, it is recognised in the guidance that all care homes are different and that a balanced risk assessment should be undertaken when considering the implementation of the same.
That being said, if providers are intending to deviate from published guidance, they should ensure that they clearly document their reasons for doing so with a clear assessment of the risks. We have seen occasions where CQC has been particularly critical of providers failing to follow government guidance (e.g. in respect of COVID-19 testing and policies relating to care home visits), even when these concerns are historic and the guidance is being followed at the time of the inspection. This in turn has resulted in criticisms being made by the CQC and reflected in published inspection reports, causing potential reputational damage.
In respect of new admissions into care homes, if you are operating a privately run care home and do not wish to accept a new admission, you have no legal obligation to do so, providing your reasons are not in breach of any law (e.g. under the Equality Act 2010 you could not refuse an admission on the basis of a prospective resident’s protected characteristics). There may be a number of reasons why you may want to refuse a new admission, such as an inability to meet a person’s needs, or if they pose a risk to existing residents in the home, either because of a positive COVID-19 status or for other safeguarding reasons. In these situations, it will generally be easy to justify a refusal of admission and document the same.
Difficulties can arise, however, when a refusal to admit a new resident is due to more controversial reasons e.g. if a prospective new resident is not considered to be a good ‘fit’ with existing residents in the home. In these situations, it is imperative that detailed notes are made and that a provider is able to evidence a clear balancing exercise and risk assessment in relation to the proposed new admission, which shows that the proposed admission has been carefully considered and has been refused for a valid and justified reason.
Proposed new admissions should be not be refused for reasons that may infringe a person’s human rights and refusals for unfair reasons may either be challenged by the individual themselves or may be subject to criticism from the CQC. As an example, a person should not be refused admission to a care home because their relatives have a reputation for making a number of complaints and similarly an existing resident should not be served notice for such a reason. Such conduct may be subject to enforcement action by the Competition and Markets Authority (CMA) or may prompt concerns from the CQC.
That being said, from a legal perspective, it can be far more difficult for a provider to remove a resident who has already been admitted to a home than it is to refuse an admission. This is, in part, due to the CMA’s report following its investigation into care home contracts and practices, published in 2018, which highlighted a number of common occurrences where providers would serve notices on residents, in breach of consumer law.
In summary therefore, a provider should never feel forced to accept a new admission which it considers to be inappropriate, a risk to the person themselves or to the existing residents at the home. Providers should consider very carefully before a new resident is admitted to a home where there are any such concerns and in some cases it will be necessary to consult with the existing residents at the home to ensure that any placements are appropriately matched. As per the latest government guidance, each care home is unique and thus, providing any decision in respect of a new admission is made in good faith and is supported by clear evidence that it has been appropriately assessed, providers should not find themselves in too much difficulty,
This article is general in nature and is not intended to constitute legal advice. If specific legal advice is required, please contact Alison Wood at Alison.Wood@la-law.com or on 01202786179.