In need of an anchor

The death of Violet Townsend after leaving her Gloucestershire
care home is just the latest in a series of cases where older
people have died shortly after being forced to move. Yet there
seems to be little sign of any concerted action to prevent
incidents like this from happening again. Perhaps one of the main
problems in mobilising action is that many of those involved have
differing professional perspectives. How, for example, should
councils balance their duty to secure good value with statutory
duties towards individual clients? Courts, ruling on a succession
of challenges to care home closures, seem to have reached varying
conclusions in response to this question.

The government has, unfortunately, failed to issue definitive
guidance that might clarify matters. There is good practice
guidance produced by the Department of Health relating to closures
of long-stay hospitals,¹ some of which could be applied
to care homes, but it only sets out good practice in moving
patients, and does not refer to the issues involved in deciding to
close a facility.

An independent panel set up following a legal challenge to a care
home closure in Plymouth² (Granby Way, which has been
kept open under a new name, Frank Cowl House) also produced some
helpful recommendations, but there is no definitive guidance that
local authorities can draw on. In the case of local authority-run
homes there have been a succession of legal challenges involving
the Human Rights Act 1998, which have clarified the situation to
some extent. But even here courts have failed to reach any kind of
consensus on whether local authorities have to assess the impact on
individual residents before deciding to close a home.

Astonishingly, independent care homes are not viewed as acting as
public authorities, and are therefore not subject to the Human
Rights Act, even where they are providing services under contract
to local authorities.

In one key case the lord chief justice, Lord Wolff, did at least
suggest that perhaps local authorities should protect the human
rights of residents through their contracts with care
homes.³ The then social care minister Jacqui Smith also
referred to this issue when she said, referring to older people
placed by local authorities in care homes, that “as case law makes
clear, in exercising its duties in respect of a person, the local
authority remains accountable under the Human Rights
Act.”⁴

But what does this mean in practice? What would human rights
compliant contracting look like? The independent inquiry, set up by
Gloucestershire Council following the death of Violet Townsend,
points us in the right direction, suggesting that although “the new
contract is good at balancing the rights of the council in
discharging its responsibilities as the commissioner of care and
the rights of care homes in their capacity as the providers of
careÉ there is not much evidence to show whether the interests
of the individual in receipt of care were considered when the new
arrangements were drawn up. This is demonstrated by the ability of
a home to terminate a placement in four weeks.”⁵

This is surely one of the key issues, because in reality
all-purpose get-out clauses enabling either party to terminate the
contract within a month are the norm.

The DoH commissioning workbook, A Catalyst for Change,
currently being piloted by several councils, rather surprisingly
has nothing to say about protecting the human rights or indeed any
other rights of older people. This is perhaps the core of the
problem. If the relationship between rights and good commissioning
practice is not apparent to the DoH we can safely assume that the
rights of older people are not uppermost in the minds of local
authority contract officers.

The Violet Townsend inquiry is revealing in this respect, with
local authority spokespersons repeatedly arguing that they could
not make an exception for one person as they would then have to
make it for everybody. The inquiry accepts this without demur. But
existing case law says that “the council have to provide for the
applicant’s needs.” Those needs may properly include psychological
needs. Where they do, it is not right to describe the payment in
meeting those needs as forcing the authority to pay more than the
usual amount it would be prepared to pay for the individual
concerned. The authority would simply be paying what the law
required.⁶

But who, within a local authority social services department, is
aware of the current legal position? Care managers and others
responsible for carrying out assessments ought to be. But what
about contracts officers, or elected members who are responsible
for setting, or agreeing to variations in, budgets? And what about
health service professionals who are involved in decisions about
use of joint funding?

Whether the rights of an older person are respected will depend to
a large extent on decisions made at all levels. For contracts that
support the human rights of older people to become a reality there
has to be dialogue between the various professional groups and a
transformation of many differing perspectives into a single joined
up view of what good commissioning should be. But as the DoH
workbook demonstrates there is little evidence yet of this kind of
“whole system” thinking.

So where will the impetus for change come from? Certainly the
Social Care Institute for Excellence, which in its mission
statement says it has been charged with “gathering and publicising
knowledge about how to make social care services better,” can be
expected to place a strong evidence on rights, and chairperson Jane
Campbell has recently argued for social care underpinned by a human
rights framework.⁷

However, the organisation with the leverage to bring about change
will be the Commission for Social Care Inspection. This is the new
inspection and regulation authority which the Health and Social
Care Bill, currently on its way through parliament, proposes will
replace the National Care Standards Commission.

The new authority will be responsible for encouraging improvement
throughout the entire social care system, including the
commissioning and purchasing activities of social services
departments, and not just, as is the case with the NCSC, for
regulation of services.

Unfortunately, while the CSCI is supposed to have particular regard
to the availability of, and access to services, their quality and
effectiveness, management, economy and effectiveness, and must
report back to the government on all of these issues, the bill
contains no reference to the rights of service users, other than a
specific requirement to safeguard and promote the rights of
children.

Again, thinking which is sufficiently joined up to encompass both
the rights of older people and effective management and regulation
of the community care system seems a step too far for the
DoH.

This is an issue that has received little attention in
parliamentary debate which has concentrated mainly on the proposals
within the bill to introduce foundation hospitals. However, it is
to be hoped that the House of Lords, which is now considering the
bill, can rectify this. People who use social care services are
entitled to expect that they will receive the full protection that
the law gives them, be this community care, consumer or human
rights legislation. The CSCI must be at the forefront of the
transformation needed to make this a reality.

Violet townsend

Violet Townsend died in February five days after she was moved
from Magdalen House, Gloucester, her home for eight years.

Gloucestershire Council could not afford to increase by £79
the £374.50 weekly fee it was paying to home owner Gloucester
Charity Trust. She was transferred against the wishes of her GP and
family to Woolstrop House in Quedgeley, near Gloucester. 

An inquiry team established by the council concluded that the
funding for residential and nursing care had “not kept pace with
the growth in the market resulting from improved health care and
subsequent changes in demography including longer life
expectancy”. 

Chris Terry, manager of Woolstrop House, told the inquiry that
Violet was “unhappy with the prospect of change in her
life”.   

Stephen Lowe is policy officer for community care
(services) for Age Concern England.

References  

¹ HSC 1998/048 The transfer
of frail older NHS patients to other settings,

www.info.doh.gov.uk/doh/Coin4.nsf/page/HSC-1998-048?OpenDocument 

² Chairman J Clarke,
Report of the Extraordinary Complaints Panel on the Closure of
Granby Way, Plymouth City Council, November 2002 

³ R on the application of
Heather, Callin v Leonard Cheshire and the Attorney
General 

⁴ Commons Written Answer,
columns 68W-69W, 3 June 2003 

⁵ Chairman D Latham,
Scrutiny Inquiry into Care Homes, Gloucestershire County
Council, June 2003
www.gloucestershire.gov.uk/index.cfm?articleid=4397 

⁶ R v Avon CC ex p
M 

⁷ Shaping our Lives
conference launch, news, page 11, Community Care, 3 July
2003