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) Eating or drinking (inc.parenteral nutrition)

(b) Toileting

(c) Washing/bathing

(d) Dressing

(e) Oral care

(f) 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 service2. Genuine choice of care provider3. Ability to exclude entry (including carers)4. Ability to retain the tenancy even if the care service is no

longer required5. Ability to assign the tenancy eg to a surviving spouse6. 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 Living4. 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. 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

Peter.Grose@la-law.com

01202 786163