Residential Care Review: expect unannounced visits from March
The Older People’s Commissioner is to begin making the first of 100 visits to residential care homes across Wales’ 22 local authorities in the first week of March as part of her Residential Care Review. The Commissioner has already gathered nearly 2,000 responses from older people, their families and the general public keen to share their experiences of residential care.
Now the process of visiting residential homes is set to begin and there will be a mixture of announced and unannounced visits.
Evidence-gatherers have been recruited and will use the ‘Ascot Measure’ as the basis for face-to-face interviews with older people to capture information about their quality of life.
- Find out more about Residential Care Review background and methodology on the Older People’s Commissioner website
Where do you stand if you receive a visit?
CFW’s legal adviser has put together a briefing note for members about the Commissioner’s powers under the review which you can read in full below.
Key points:
- The Commissioner (or a person authorised by the Commissioner) may enter any premises, other than a private dwelling, to interview an older person who is resident / cared for there at any reasonable time.
- There Commissioner doesn’t have the power to enter premises to inspect documents or interview anyone other than the residents.
- The older person must consent to being interviewed and can request someone else to be present – but there is no automatic right for anyone else to be present.
- The Commissioner does have the power to review arrangements for complaints, advocacy and whistle-blowing but not in the context of this review.
- Lastly, don’t forget there is no reason why the care home provider / manager cannot ask for feedback at the time of the visit, either from the Commissioner or from the resident/s themselves.
Review guidance: your legal position
The Older People’s Commissioner for Wales (“The Commissioner”) – Residential Care Review into the quality of life and care of older people living in residential care in Wales.
According to the Commissioner’s website, the purpose of the review is:
“to review whether older people living in residential care have a good quality of life by looking at factors such as physical and psychological health, social relationships, the care home environment and spirituality”.
More detail can be found in the terms of reference for the review at: http://www.olderpeoplewales.com/en/Reviews/Residential_Care_Review/Terms_of_Reference.aspx
The Commissioner’s Powers
The Review is being carried out using the Commissioner’s statutory powers, under Section 3 of the Commissioner for Older People (Wales) Act 2006 (“the Act”).
Section 3 essentially provides that for the purpose of safeguarding and promoting the interests of older people in Wales, the Commissioner, may review the way in which public bodies, and a range of other persons specified in the Act, discharge their functions or fail to discharge their functions. Independent providers are specifically included as persons whose functions are subject to review under Section 3.
For the purpose of carrying out such a review, Section 13 of the Act provides that the Commissioner or a person authorised by the Commissioner may enter any premises, other than a private dwelling, for the purpose of interviewing an older person accommodated or cared for there.
No further guidance is provided as to the Commissioner’s ability to delegate her powers. Providers are of course entitled to satisfy themselves as to the identity of any persons calling upon them in accordance with their own procedures.
There is no provision for the Commissioner the power to enter premises for the purpose of inspecting documents or interviewing persons other than the residents.
It is important to note that the interview may only be conducted:
a) if the older person consents;
b) in the presence of another person, if the older person wishes another person to be present; and
c) in the presence of others only if the older person and the Commissioner have consented to their being present.
The Commissioner may enter premises and interview an older person at any reasonable time.
As long as an older person consents, therefore, and provided that any person that the older person wishes to be present is present, the Commissioner may conduct an interview with the older person. There is no automatic right for anyone else to be present during the interview.
Other Powers of the Commissioner
Providers should be aware that the Commissioner has wider powers but that these are exercisable in relation to the Commissioner’s other functions, not in relation to the Commissioner’s power to review under s. 3 of the Act. For instance:
Power to review arrangements for advocacy, complaints and whistle-blowing[1]
When reviewing such arrangements, the Commissioner may require providers or any person who works or worked for such providers, to provide information in any format which the Commissioner considers necessary[2].
However, if such a requirement – or indeed any requirement other than entering premises to interview an older person accommodated there – is made in the context of the current review, the Commissioner (or her delegate) should politely be asked under what power the request is made, and for this to be confirmed in writing i.e. don’t just take it at face value.
The above summary is provided to make providers aware of the limits of the Commissioner’s powers in this review. The Commissioner has said she is only going to use her Section 3 powers, which means she can enter and interview (with the older person’s consent). Staff or relatives do not have a right to be present at such an interview, but only if the older person and the Commissioner consent. The Commissioner cannot ask to see records, although if the older person has capacity and authorised this in respect of his/her own records, it might be inappropriate to refuse access.
There is no reason why the care home provider / manager cannot ask for feedback at the time of the visit, either from the Commissioner (or the person authorised by her to do the visit) or from the resident/s themselves.
Janine Moreno, Trainee Solicitor
Alison Castrey Limited
20 November 2013
[1] The Commissioner for Older People (Wales) Act 2006 c.30 Section 5
[2] The Commissioner for Older People in Wales Regulations 2007 No. 398 (W.44) Part II Regulation 4