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“The single greatest failure in devolved government since the creation of the Scottish Parliament”: new expert report shines light on Care Home deaths.

Credits —

Nick Kempe

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A report by a leading care expert published by the Common Weal think tank outlines the series of failures which have led to the death toll in Scotland's care homes, leading the report author to describe the handling of this as “the single greatest failure of devolved government since the creation of the Scottish Parliament”.

Author Nick Kempe was Head of Service for Older People in Glasgow and, when seconded to Scotland Excel, developed national commissioning in Scotland. He played a central role in the development of the National Care Home Contract and then led on the development of the cost of care calculator for Care Homes in Scotland.

The report details the history of Care Homes in Scotland and the commissioning method and examines carefully the various stages in the Scottish Government's responses to Covid in Care Homes. He documents how a failure to implement any of the warnings on pandemic preparation, the weakness of the inspection and enforcement regime in Scotland, the long-term running-down of the provision of medical services in Care Homes (as opposed to less expensive personal care), the refusal to intervene in Care Homes early in the crisis (it was left to private companies to ensure resident safety) and the serial failures on PPE and testing inevitably led to the current death toll.

The report argues that the tragedy was not only predictable but clearly predicted and that the deeply flawed Scottish Government response in the first eight weeks of the crisis led directly to many unnecessary deaths.

Among the key findings in the report are:

• Based on quality ratings at the outset of the crisis more than one quarter of Scotland's care homes (those rated adequate or below) could have been expected to be unable properly to protect older people in the event of a pandemic.

• The Care Inspectorate does a professional job but has few enforcement powers and works inside a regulatory regime which is very limited in scope. As an example, in February they simply did not have the power to do what has now (eventually) been done at the Home Farm Care Home on Skye. The Care Inspectorate was incapable of brining Care Homes up to the standard required by the Covid crisis and poor quality care is embedded in the system.

• The result is that six out of ten care homes in Scotland have had a case of Covid and about 45 per cent still have a current case (as of Monday 18 May) – plus 7.4 per cent of care home staff have been absent with Covid compared to just 4.0 per cent of NHS staff.

• All of what has resulted was accurately predicted in 2016 but calls to prepare were ignored. In particular there has been a continuing decline in trained medical staff and a rise in unfilled nursing vacancies (52 per cent of private sector Care Homes have nursing vacancies, compared to 15 per cent in the voluntary sector). There is little formal training for Infection Control for non-medical staff in Care Homes.

• In 1993 the Community Care Act transferred responsibility for providing nursing care for Older People from the NHS to the private sector and for the first eight weeks of the crisis the Scottish Government was adamant that the the Providers (and not the Scottish Government) was responsible for protecting care home residents – until a mid-May U-turn. This effectively represented the privatisation of the responsibility for Older People in Care during the crisis and had the later U-turn been made at the beginning many lives would have been saved.

• This meant that medical treatments which could have been delivered in Care Homes (such as the provision of oxygen) were not supported by the Scottish Government which left treatment to the discretion of private companies geared around property finance. In addition the nature of the deaths of Care Home residents was not taken to be a government responsibility and so the use of palliative measures (to make deaths as comfortable as possible) was also left to Providers. This almost certainly means many old people faced an absolutely unnecessarily uncomfortable and painful death. Health staff were not instructed to take the clinical lead in Care Homes until 17 May.

• In addition the mental wellbeing of residents was not made a priority, with people being locked in rooms alone for indefinite periods (as a result of Scottish Government advice), with some being told or knowing that they would be likely to die before seeing family members again. A Human Rights approach was not taken, and while individual Care Homes and staff will have done the best they can, no guidance on quality of life was provided.

• But the repeated updating of guidelines and the urgent steps taken to remove traces of the preceding guideline created a confusing impact – between 10 May (when revised guidelines issued two days earlier were withdrawn) and 15 May (when new revised guidelines were issued) there were no official Scottish Government guidelines at all. • Private operators have extracted tens of millions of pounds of public money dedicated to care as private profit – and even more has been extracted by 'flipping' property which is effectively paid for by the public (the biggest profits in the care sector come from property and not from providing care).

• This is all exacerbated not only by the power of private providers and the way they have influenced the decision-making of successive Scottish Governments but also by prevailing management culture which, by emphasising 'partnership working', make criticism of the system almost impossible.

Author's conclusions:

• This represents the single greatest failure of devolved government since the creation of the Scottish Parliament.

• Decisive action might have helped reduce the risk and would have prevented deaths

• Scotland has a regulatory framework which puts private ownership and private financial interests before care and there are no effective mechanisms for improving standards of care in failing Care Homes. 'Partnership working' (cooperation with private companies) comes before standards.

• Few Care Homes have the health skills necessary to prevent Covid spread, exacerbated by a recruitment crisis resulting from low pay in the sector

• The privatisation of the care sector is clearly not in the public interest.

• For two months the Scottish Government was simply in denial about what was happening in Care Homes.

Case Study: Skye

• The Home Farm Care Home on Skye was sold to HC-One, a private sector company, following the collapse of the Southern Cross company in 2011 (the Scottish Government made no provision for taking failing Care Homes into public ownership so dropped the usual evaluation process for this HC-One takeover). HC-One is part of a group that includes Meridian Healthcare (30 Homes, 1200 residents) and which, after the purchase of 120 Care Homes from BUPA in 2017 (now HC-One Oval Ltd), became Britain’s biggest Care Home Provider. HC-One is now owned through Libra Intermediate Hold Co Ltd, based in Jersey and the ultimate owner of all the Care Homes in the group is FC Skyfall LP, based in the Cayman Islands. The has a complex corporate structure, with 50 companies, six of which are registered offshore either in the Cayman Islands or Jersey.

• It is one of a number of highly-geared care corporations which use Care Homes as a financial instrument to extract cash through sale and lease-back of property or via intercompany loans. • HC-One Ltd operates 170 Care Homes and has property lease costs of £36,513,000 or £215,000 per Care Home. Its top paid Director received a salary of £808,000. HC-One Ltd has only once returned a profit since 2011 and is now burdened by £265m in debts.

• Its Chief Executive is Sir David Behan CBE, formerly Chief Executive of the Care Quality Commission, the body responsible for standards in Care Homes in England from 2012-18.

• The Home Farm Care Home on Skye saw its quality rating decline rapidly between 2016 and 2018, falling two grades to 'adequate'. The Care Inspectorate issued two legal requirements for improvement.

• A year later a follow-up inspection found neither legal requirement to have been met – so the deadline was extended to June. There appears to have been no follow-up inspection until two serious complaints were received in October and November. While the results of that inspection are not public it is understood it identified neither legal requirement as having been fulfilled. An additional legal requirement on infection control was also issued and staffing at the home was reclassified as 'weak' (the lowest rating on a six-point scale), but the deadline for compliance was extended until 31 December.

• An unannounced inspection was made between 21 and 24 January 2020, discovering that none of the three legal enforcement orders had been met. Despite being over a year since the first orders were issued, the deadline was extended by the Care Inspectorate yet again, until 31 March.

• The failings identified all could be expected to lead directly to major problems in the event of a pandemic, making the eventual outcome tragically predictable.


1) The Scottish Government should lead the development of a national plan to protect Older People in Care Homes from Covid-19 and future pandemics building on the Clinical Guidance of 15 May. The focus of this should be on inputs and resources. Key elements should include: o Contact tracing and testing in preventing viruses from entering Care Homes with contact tracing teams working closely with Care Inspectorate, SSSC and staffing agencies o Ensuring adequate medical support is in place for all Care Home o Restoring the role of qualified nurses in ensuring safe care o A national training programme for ALL staff on infection control and safe use of PPE o Assessment of what additional staff capacity is required to manage outbreaks and the development of mechanisms to ensure this happens where needed o The further development of guidance on how best to combine high standards of infection control with respect for Older People’s rights and person-centred care.

2) As part of the development of the Covid-19 plan, the Scottish Government should commission an immediate independent short-term investigation into what lessons can be learned from outbreaks in Care Homes to date. This should include both Care Homes where outbreaks have been contained, those where it has spread rapidly, like Home Farm, and what there is to learn from the countries that have successfully prevented outbreaks in residential settings.

3) Scotland should no longer tolerate the delivery of poor care to Older People in Care Homes. To end this, the Scottish Government should: o Use the Health and Care (Staffing) (Scotland) Act 2019 to ensure that the health skillset possessed by staff in nursing homes is sufficient to protect and meet the health needs of vulnerable Older People o Increase the resources and powers available to the Care Inspectorate so that they can remove Providers who fail to meet requirements for improving a service within given timescales. o Ask the Care Inspectorate to identify as a matter of urgency all Care Homes where, like Home Farm, residents might be particularly at risk (perhaps a third of all Care Homes in Scotland). o Resource Local Authorities and Health Boards so that they can step in and take over failing services. o Require the provision of full accounts for all services, cap the amount of money that Providers can extract from them (both as profits and service charges) and require all Providers to be fully registered in the UK.

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