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Cornwall Partners in Care response to provider consultation

Posted on the 15th February 2018

Agreement for the provision of Residential and Nursing Care.

The below response was issued to Cornwall Council in relation to their Fair Cost of Care consultation period which has been extended to the 26th February 2018 and is in relation to the following documents (or click HERE to download as a pdf);

Overarching Contract

Service Specification

Individual Placement Agreement


Overarching Contract

Clause Number

Clause title

Comment

1.1

“Competent Body”

This is not necessary and has no meaning.  “Regulatory Body” covers this. Please confirm that this will be deleted.

1.1

“CQC Regulations”

“Outcomes” has no legal meaning and is not defined. Could the Council confirm what it wants this to cover? The Fundamental Standards are part of the Health and Social Care (Regulated Activities) Regulations 2014, not the Care Quality Commission (Registration) Regulations 2009.

1.1

“Data Processor/Data Subject”/”DPA”/”Personal Data”/”Sensitive Personal Data”

References to DPA will be out of date in May 2018 and replaced by the GDPR. Could the Council confirm why the contract doesn’t reflect this? This applies to clause 25.2 where the definitions are used.

1.1

“Force Majeure”

We propose that the word “solely” is inserted so it reads “and which is not solely attributable to any act of failure...”

1.1

“Major/Moderate Concerns”

These no longer exist. Please confirm that references will be deleted.

2

“Commencement and Duration”

Please confirm why extensions to the contract are not mutually agreed.

3.2.1

Services

“Good Clinical Guidance” is not a defined term. Could the Council confirm what it means?

3.2.1

Services

Providers should not be contractually required to comply with “guidance” and “recommendations”. They should be required to comply with the law. This may mean they have to show they are complying with guidance or find another way of achieving the same thing. This is the approach taken by CQC. Could the Council confirm why it is going further than this and requiring providers to contractually commit to complying with guidance? This also applies to paragraph 1 of the Specification.

3.2.4

Services

“Competent Body” has no substantive meaning and providers should not be required to comply with “recommendations”. Please delete this.

3.2.5

Services

See above.

3.3

Services

Please delete this clause. The contract requires providers to comply with the Specification and the law which should be sufficient comfort that providers must operate compliantly. It is not reasonable for the Council to have overall discretion as to how a care home is operated.  

3.6

Services

A provider could be in breach of this because it may have a different view to the Council as to what is a “matter of interest”.  Could the Council be more specific about the type of information it will require?

3.7

Services

This is unnecessary and unreasonable. “Contract Standard” is defined as being “to the entire satisfaction of the Council’s Representative” which may be completely subjective. It should be sufficient for the provider to comply with the contractual terms of the Contract which includes compliance with relevant legal requirements. Please confirm why this isn’t sufficient.

3.8

Services

How does the Council envisage that providers comply with this?  It is likely to be a matter of public record via CQC that a provider takes council-funded residents. Could the Council confirm how this restriction would work in practice?

3.9

Services

Could the Council confirm the purpose of this clause? This is not routinely used in local authority contracts.

3.10

Services

We propose that this should be subject to “materiality”. Please confirm this is accepted.

3.11-3.14

Registration

Use of the word “immediately” is not practical. CQC requires these notifications “as soon as reasonably practicable”. This should be the same standard. The provisions of section 11.2 of the Specification conflict with this. Please amend so there is consistency.

3.15

Registration

It is not reasonable for the Council to be able to terminate the contract if the registered manager changes. This is entirely out of the hands of a provider and could be a positive. Please delete this.

3.17

Registration

Please confirm whether the reference to notice is to a Notice of Proposal or Notice of Decision? See previous comments on “Major/Moderate Concerns”. These references should be deleted.

5.4

Person Involvement

Providers should have discretion as to what action they take as a result of surveys. What is appropriate or not will depend on the circumstances of each provider and should not be dictated by the Council. Ultimately it is the provider that has to be legally compliant. Please delete this.

7.1

Staff

The wording in this clause goes beyond what is in the Health and Social Care Regulations. A provider cannot contractually agree that its staff will be “honest”. It can only act appropriately if it turns out they are not. Not all staff will be experienced until they have gained experience working in the sector. Please amend this clause accordingly.

7.4

Staff

This goes beyond what is legally required. Please delete.

7.8

Staff

Providers cannot give the Council discretion to dictate removal of staff. This could potentially cause liability for breach of employment legislation. The providers must run their homes legally and that includes dealing appropriately with staff failings. That should be sufficient comfort for the Council. Please delete this.

7.9

Staff

See above.

7.11

Staff

How does the Council envisage providers comply with this clause? There will always be periods of stability and periods of instability. Please delete this.

7.12

Staff

This clause doesn’t make sense. Providers may have periods when more agency staff are needed than usual. They should not be penalised for this unless they fail to meet the required legal standards. Please delete this.

7.13

Staff

Please confirm why the Council requires this.

7.15

Staff

Requiring a timescale of “immediately” isn’t practical. We propose this is amended to within an agreed number of days of the provider discovering the issue.

7.16

Staff

As above. How does the Council see this working in practice?  Please confirm what happens in practice if a staff member knows a service user or member of their family?

8.2

Safeguarding

Please confirm that these timescales will be aligned with whatever is in the Council’s Safeguarding Policy

8.5

Safeguarding

See comments under 7.15 above.

8.11

Safeguarding

This is already adequately covered by Health and Social Care legislation and is far too prescriptive. Requiring the prior written approval of the Council in advance will lead to delays at a time of recruitment crisis. These applicants may take other jobs rather than wait for Council approval. No compliant provider would “start” a staff member without a full DBS check unless the need was acute and event then they would work under full supervision (which is permitted by CQC guidance). Could the Council confirm why this requirement is included? It is also included in the Specification.

8.15

Safeguarding

It is not reasonable for a warranty to be given in terms of future employees. It should be sufficient to state that providers will not employ anyone who is barred. If they do there will be a breach of contract. Please delete.

8.17

Safeguarding

See comments under 7.8 above. The provider should be able to follow its own employment policies and procedures.

8.21

Safeguarding

See above.

9.1

Care Home Provider’s Representative

This clause lacks flexibility and the ability for “shadowing” for career development, succession planning and crisis management. We propose that this is amended so that the Council is notified if there is a change of personnel but that consent is not required. Please confirm this is acceptable.

9.4

Care Home Provider’s Representative

It can take weeks, if not months, to replace a registered manager who is likely to be the representative. CQC target for providing a registration interview is ‘up to 10 weeks’, and this will be additional to recruitment and selection.  It is not practical to notify the change in 5 working days. Please confirm this will be amended to “as soon as reasonably practicable”.

10.2

Council’s Representative

This is not reasonable. The provider should only have to operate within the law, not in accordance with Council instructions.  This gives the Council complete control over how a care home is run which is commercially unacceptable. The Council is not the regulator nor the provider. Please delete.

11.1

Statutory Obligations

Providers should only be obliged to comply with English Law - references to European Law should be removed. We propose that the indemnity is limited to “Losses” as defined in the definitions section.

11.2

Statutory Obligations

We propose that this clause should be subject to materiality otherwise it is too onerous and impractical. Please confirm what “other provision” means or delete the wording.

11.3

Statutory Obligations

This imposes a more onerous obligation than the suspension clause in clause 32. Please amend to make it clear that suspension may only be triggered in accordance with clause 32 or delete it.

11.4

Statutory Obligations

See above. This duplicates clause 32 so should be removed.

11.10

Statutory Obligations

Please confirm that this only applies to clients placed by the Council. Only CQC can legally suspend or terminate the regulated service provided by the provider. Please amend to reflect this.

11.16

Statutory Obligations

Could the Council confirm its requirements?

13.1

Best Value

The duty is on the Council not the providers. Clause 13.1 should be deleted.

13.2     

Best Value

Best Value is a duty of the Council not providers. Providers can agree to acknowledge the Council’s duty to comply and provide information the Council requests to facilitate its compliance. That is as far as the obligation should go. Please amend accordingly. The wording “The Care Home Provider agrees to co-operate fully and assist the Council at no extra charge in any manner reasonably required by the Council in connection with the Council’s performance of its Best Value duty” should be deleted.

13.4

Best Value

Could the Council confirm what “value for money” means?

13.5

Best Value

This clause attempts to contractually oblige providers to achieve an outstanding rating. Please delete this.

13.6.3

Best Value

Given there is national understanding that adult social care is under-funded this clause should be deleted. Please delete.

14.2

Duty of Candour

14.2.1 and 14.2.2 are unnecessary. Providers are already legally required to do this. 14.2.2 goes beyond what is legally required. It is not necessary for the CEO to be involved. An explanation is not legally required. What is legally required is an account of all the facts known, details of what further investigations will be taken and in time the results of those investigations. Please amend accordingly.