On 8th October 2020, the Care Quality Commission (CQC) issued new statutory guidance to the learning disability and autism sector. Right support, right care, right culture (RRR) replaced Registering the Right Support (RRS), which had been in place since June 2017. In fact, the original version of RRS had been issued in early 2016 without any real consultation with the sector.
RRS defined what would be acceptable in terms of new community services and close inpatient facilities for people with a learning disability or autistic people who display behaviour that challenges.
For the first time, CQC adopted a market-shaping role, becoming the standard-bearer of the national service plan and model promulgated under Building the right support, which was issued by NHS England, Association of Directors of Adult Social Services and Local Government Association in October 2015. The national model forms part of the Transforming Care agenda, the response to the appalling events at Winterbourne View.
How we got here
The intent behind Building the Right Support is laudable, focusing on reducing the number of people with a learning disability, autism or both in inpatient settings by increasing specialist community provision.
The principles and values are centred around choice, independence and empowerment, which we would all support. However, what came to be hugely contentious was the set of rules relating to the size, location and design of new care homes, which was later codified in RRS.
New care homes had to be small in scale (typically no more than six residents), in a residential area linked to the community, and meet local needs. Overnight, schemes were derailed, and others in the formative stage shelved forever, leading to insufficient community provision, not more. Many applications to increase bed numbers in existing care homes were also turned down.
In the face of so much opposition from the sector, CQC consulted on a revised version of RRS, the final version published in June 2017. CQC stated that it was not adopting a ‘one size fits all’ approach and that it would consider proposals departing from the national model provided there were compelling reasons to do so. However, at the same time, CQC stated that new services should not be developed in a campus style or congregate manner.
In the guidance, campuses are defined as ‘group homes clustered together on the same site and usually sharing staff and some facilities. Staff are available 24 hours a day.’ Congregate settings are ‘separate from communities and without access to the options, choices, dignity and independence.’
If, say, a provider has several existing care homes on a site, all rated Good or Outstanding, CQC will not register an additional one, as it offends the rule against campus style settings. Equally, if a proposed care home is in a rural setting lacking local amenities, it is likely to be turned down based on it being a perceived congregate setting.
Right support, right care, right culture
The focus of RRS was on applications to open new services or extend existing ones. However, the new RRR guidance expressly applies to existing services, as much as it does applicants for registration:
- Applies to any service that currently, or intends to, provide regulated care to autistic people and people with a learning disability. This includes children and young adults, working age adults and older people.
- Describes our regulatory approach for these services, covering our registration, inspection, monitor and enforcement functions.
- Makes our expectations clear to future and existing providers.’
CQC also applies the guidance to supported living schemes, even though it has no statutory role in regulating the accommodation element of such services. Indeed, several of the case studies relate to supported living services. One is left with the distinct impression that CQC has decided to extend its regulatory remit through its self-appointed market-shaping activity, even though the legislation gives it no express authority to act in this way.
The guidance goes on:
‘Providers of new services must demonstrate, and providers of existing services are expected to demonstrate, how they will meet:
- Our characteristics of ratings for good in healthcare and adult social care.
- The regulations (including fundamental standards).
- People’s expectations, as set out in the service model.
- The requirements in this guidance to demonstrate that:
- There is a clear need for the service and it has been agreed by commissioners.
- The size, setting and design of the service meet people’s expectations and align with current best practice.
- People have access to the community.
- The model of care, policies and procedures are in line with current best practice.’
Implications for providers
CQC acknowledges that some providers will not meet the national model, saying, ‘We expect providers to show how their service meets the needs of people in line with current best practice. If they do not follow best practice in any way, they must provide compelling evidence that demonstrates how their alternative approach will deliver appropriate and person-centred care.’
It seems likely that services rated Good or Outstanding will be left alone as CQC can argue that their models of care align with Building the Right Support, even if their location and size do not accord with perceived best practice. However, one can imagine it will be different for those services rated Inadequate or Requires Improvement. Increasingly, there will be pressure on CQC to take enforcement action to remove what it sees as ‘institutional’ services that cannot justify being out of alignment with the national model.
Paul de Savary, Managing Director of Home from Home Care, runs nine Outstanding and two Good care homes for people with a learning disability and/or autism. Paul has been campaigning since 2016 for CQC to change its guidance to acknowledge the small cohort of individuals with the most complex, challenging needs who do not fit into CQC’s doctrinaire approach.
He says of the new guidance, ‘You have to ask a simple question. Given that RRS collapsed new specialist residential services to exit individuals from Assessment and Treatment Units (ATUs) – where over 2,000 of the most vulnerable suffer by way of restriction, restraint and medication – does RRR rectify this shocking, inhumane reality?
‘The answer is another ‘R’, rhetoric, and another, reality, or in this case, lack of.
Extraordinarily, RRR simply ramps up discrimination against individuals with autism by continuing to treat them as a single cohort, to be corralled into a now even narrower CQC model of care. Given RRS’s failure, it is now negligent that RRR dogma excludes input from best practice residential providers which CQC rates Outstanding, or indeed from its own inspectors.
‘RRR’s top-down driven approach excludes fundamental operational realities: the evolution of property (single person apartments in place of beds) and data-driven care that creates transparency and real-time accountability. As RRS before it, RRR’s dogmatic and throttling message strangles imperative innovation and will only prolong the suffering of those incarcerated in ATUs. So blindingly obvious to the informed, yet, inexplicably, not to senior CQC management. Rhetoric in place of reality.’
A consultant’s perspective
Tim Dallinger from Social Care Consultants Ltd comments, ‘The legislation and statutory guidance in other parts of the UK are very different from that in England.
‘In Wales, almost no distinction is made between services for older persons and those with a learning disability and/or autism. The only difference is the regulations about physical space requirements, which are less onerous if the application is for a new service or an extension and the total number of people supported is four or fewer.
‘In Scotland, the Keys for Life strategy for learning disability services was launched in 2019. I can see nothing in this strategy which places restrictions on the size of a service, although the overall aspirations of the strategy are very similar to RRR.
‘In Northern Ireland, the Regulation and Quality Improvement Authority (RQIA) has no specific guidance for services supporting people with a learning disability and/or autism. Instead, this issue is considered on a case by case basis.
‘RRR makes it clear that registration applications must be consistent with local authority Market Position Statements . Many of these were written a number of years ago, and some omit specific commissioning requirements around services for people with a learning disability. Others refer to the wish to commission supported living services when, in practice, commissioners continue to place people with a learning disability in care homes and larger services.
‘So, where does this leave providers? Confused and in limbo. I am supporting a Good provider who has an existing registered service with more than six beds. An application was made to increase the number of registered places to meet local need. The application process was interrupted by COVID-19 but CQC has advised that the application will be rejected. The provider has no idea how the new guidance will affect the application and has turned down numerous referrals when it could have provided a service which met the needs of those people.
‘Consistent UK-wide guidance which is in line with national and local commissioning strategies is needed to ensure commissioners, providers and people who require services know what to expect. Only then can this part of the sector thrive and prosper.’
I have been involved in this debate for the last four years. What concerns me is how a regulator can adopt a market-shaping role when there is no express authority to support such activity, which now extends to the regulation of supported living services. There is also my secondary concern around the evidence base that ‘justifies’ a group setting of six or less being acceptable, but running the risk of becoming institutional between seven and ten. This evidence base is subjective, tenuous and easily rebutted by many examples of Outstanding services operating with those slightly higher numbers.
CQC’s focus is on upholding doctrinal purity at all costs, to the point where real life experience and track records are disregarded, even when it is clear new services would be outstanding and innovative. The most disappointing thing of all is that genuine choice is the first casualty of CQC’s approach. We are told, ‘People expect providers to comply with Building the Right Support and the accompanying service model when designing or running a service.’
Yet this is an assumption used to back up CQC’s approach. What it really means is that CQC knows what is best, even if people needing specialist community services, their families and commissioners might have the temerity to disagree.
What do you make of Right support, right care, right culture? What changes do you see and will they work? We would love to hear your views on the topic, share your views and comment below.