Bending rules to provide care

A joint inspection unit had to decide whether
to seek an urgent cancellation order for a residential and nursing
care home in order to safeguard the health of residents, even
though it meant the home would be running unlawfully. Norwen Cole
explains the dilemma to Graham Hopkins.

The power that local authorities have to
invoke emergency regulatory action has been described as draconian:
“At a stroke, without warning or notice the registration of the
regulated care homeowner is terminated.”¹ This usually
means that a home is operating unlawfully: in such a case residents
must be moved out (a hugely disruptive and potentially fatal task),
resulting in the loss of a business and the ruin of the owner.

It’s not a power to be taken lightly. But it
was one that Norwen Cole, senior standards officer at the joint
inspection unit at Suffolk social services, believed had to be
taken to safeguard the health and well-being of residents living at
Denby Lodge (not its real name), a sumptuous residential and
nursing care home near the Suffolk coast.

“We had a number of serious concerns over a
period of time, but we actually had nothing to corroborate them,”
says Cole. “Then a member of staff made an anonymous complaint
about the service. Eventually we persuaded this member of staff to
meet and talk with us about what was actually happening. And later
this person became a significant witness. As a result of that,
other people started coming forward to talk to us. A notice of
proposal to cancel was drawn up, with all the implications of
moving residents.”

Frustratingly, the unit found it difficult to
convince relatives of the plight of the residents, due, in part, to
the home’s appearance. “The home is in an idyllic setting, very
rural and set in five acres of lovely grounds,” explains Cole. “The
actual frontage of the home looked absolutely wonderful.”

Christine Doorly, who managed the joint
inspection unit at the time, agrees: “So many relatives said it was
a wonderful place, totally taken in by the peacocks in the grounds,
the oil paintings and the antiques. Relatives would ring up the
unit and say ‘Why are you doing this? It’s lovely.'” Even after the
case had been publicised in the local press, exposing the poor
practice – for example, inexperienced staff on their first day
giving insulin injections, staff shortages, no nurse on duty –
people were saying, “but it’s still a nice place, though, the
owners are lovely”. Cole adds: “Some of them were not prepared to
accept their relative was living in a very dangerous
environment.”

The home was to be transferred to a newly
formed company, with a managing agency that specialised in rescuing
ailing businesses, and had support from the National Care Homes
Association and a reputable local owner. But despite agreeing to do
so, the owners refused to stay away. “Everything we ever asked the
owners to do was a huge battle,” says Cole. “Quite clearly they did
not want to be regulated.”

There were also concerns about the behaviour
of one of the owners, who took to walking around the home carrying
an air rifle. The owners also hired bullies to intimidate staff and
inspectors. “The owners found out which staff had complained to us
and started a systematic process of intimidating them,” recalls
Cole. “The consultancy group said that they were withdrawing. With
the owners back in the home, in charge on a day-to-day basis, there
was a very real risk to residents and staff. With our solicitors we
went to see a magistrate in Lowestoft at about 10pm on that Friday
evening. We eventually got the order at 2am to cancel their
registration. And because of the talk of guns, we went to the
owners’ home with police and served the cancellation.”

The new company could not be registered until
the Monday. So, rather than move people out, the decision was taken
to keep the home open, albeit unlawfully, for the weekend. “The
people in the home weren’t at risk and it was better to operate in
a legal vacuum for two days than to hastily remove them. We are all
working within the legal framework of the Registered Homes Act
1991, but I believe the fundamental principle is the duty of care
to people living in that home. We are aware of research evidence
that moving people hastily – the shock and so on – is potentially
fatal,” adds Doorly.

After serving the cancellation, Cole visited
the home and found a number of residents in bed, clearly having
dementia, on plastic mattresses with no sheets. Some of them were
naked. “It was such an appalling abuse of dignity as much as
anything else,” he says.

The owners appealed against their cancellation
at a registered homes tribunal. It was set for five days, but after
just a day and a half they withdrew. “It was a good outcome,
knowing that they can never own or manage a care home again,” says
Cole.

¹ Paul Ridout,
Registered Homes, Jordans, 1998

Case notes

Practitioner: Norwen Cole

Field: Regulation

Location: Suffolk Council social services

Clients: Thirty-five residents living in Denby
Lodge (not its real name), a dual-registered home providing nursing
and residential care.

Case history: Thomas and Jane Hainstock (not
their real names), a married couple, were registered by Suffolk
social services as owners of Denby Lodge. Jane Hainstock was also
registered as the nurse manager. Suspicions of poor practice at the
home were confirmed when a member of staff at the home complained
to the joint inspection unit. As more staff came forward and more
evidence was compiled, a notice to cancel the owners’ registration
was served. An agreement was reached with a consultancy group to
take over the day-to-day running of the home until a new buyer
could be found. Although technically still the owners, the
Hainstocks agreed to stay away. However, they broke that agreement,
forcing the consultancy company to threaten to quit. This would
leave the home and the residents once again under the control of
the Hainstocks.

Dilemma: By seeking an urgent cancellation
order the home would effectively be running unlawfully, but to move
residents out of the home until a new registration was granted
would be potentially traumatic.

Risk factor: Without intervention the welfare
of very vulnerable and frail older residents was seriously at
risk.

Outcome: An urgent cancellation was granted.
The Hainstocks can never again manage or run a care home.

Arguments for risk

– It would be traumatic to move frail and
mentally infirm people over a very short space of time – only for
them to possibly move back again two days later. Not only would
alternative but suitable accommodation need to be found, but
research has shown that moving older people could even cause
death.

– There was a serious risk to a number of
staff who were subject to intimidation at the time. Staff unable to
work in that environment would have left, leaving the home
dangerously understaffed.

– Local authority managers and care staff were
on standby to move into the home to make sure residents were safely
cared for over the weekend.

– There were no concerns about the suitability
of the building, and thus with competent and experienced staff
available the care of residents would be guaranteed.

– Residents cannot be compelled to leave a
dual-registered care home, and as many residents had dementia the
authorities may have needed recourse to the Mental Health Act
1983.

Arguments against risk

– The home would be operating unlawfully.
Urgent cancellation is only possible if there is a “serious risk to
health, life or well-being” of residents. Therefore, by condoning a
situation where a home is permitted to run unlawfully, the local
and health authorities may be undermining their intended
“seriousness”.

– It was midsummer so possible illness caused
by cold temperatures during a move would not be an issue.

– There’s always a risk of legal action being
refused, which may in itself prove detrimental in any future action
taken and might even suggest that the authority was being
unreasonable in its assessment of the owners’ fitness to run a
home.

– A number of relatives did not consider the
home or the owners a danger to the residents.

– The authority would have to bear any costs
for providing care to residents, and should the planned transfer of
ownership fail for some reason, this interim care arrangement may
stretch over a long period of time.

Independent comment

The home owners showed a mixture of
threatening behaviour, deceit, defiance and violence towards staff,
relatives and inspectors, and all of these, plus cruelty and
neglect, towards their residents. They were clearly very dangerous
people, and once clear evidence was available, the authorities felt
obliged to act urgently.

The fact that some relatives remained
(deliberately?) blind to the home’s deficiencies illustrates how
wrong it would have been to be swayed by the views of families
rather than the vital interests of the primary service users, the
older people. Relatives can have quite different agendas of their
own.

It was clear that if the home were to close,
even for a short period and whatever the season, frail residents
would be seriously endangered. The fact that people with dementia
may seem not to understand their situation does not lessen their
vulnerability.

The action to avert this catastrophe was an
imaginative combination of the legally correct and the technically
unlawful. The authorities kept the welfare of residents firmly as
their pre-eminent concern, and were unmoved either by the extra
expense they would incur in providing emergency staff or by the
possibility of much greater costs in the longer term. If the urgent
cancellation had not been granted, the responsibility would at
least have been shared with a court; the evidence was so strong
that the success of an alternative legal process was not seriously
jeopardised.

Jef Smith is an independent writer,
trainer and consultant, specialising in the care of older
people.