The Care Services minister (Norman Lamb) has stated his intention to make private companies responsible for the operation of care homes accountable if these care homes are shown to be failing in the standard of care they are providing.
While no new legislation has, as yet, been proposed, corporate entities should see this as a warning sign that they cannot simply reap the benefits of profits when the care home performs well without also taking some of the legal responsibility when a care home fails. Every corporate body involved in the funding or operation of a care home will need to consider what lines of accountability are in place from the care home workers through to the care home managers and directors of the care home, to themselves. In many cases, issues of care home abuse come down to poor monitoring which is as a result of a lack of funding in the key areas. Therefore private companies who fund care homes need to be able to pre-empt issues by releasing funds or redirecting funds before poor standards of care arise or acts of abuse are allowed to happen.
Recent healthcare abuse and neglect cases have focused on the failings of individual care workers and managers, rather than assessing the responsibilities of the corporate entities who either fund the care home, profit from the home, or those who are ultimately responsible for the Care Quality Commission registration of the care home.
Mr Lamb stated that he wanted to address what he perceived as ‘regulatory gaps’ to ensure there were consequences for firms which failed vulnerable patients in hospitals or care homes. Indeed, it does appear that it is much easier to prosecute individuals for their failings than it is to prosecute a company. Currently, the corporate entity may be affected indirectly by negative press regarding the home arising out of the prosecution and investigation of individuals, but in most cases they will escape direct punishment. By way of example, corporate manslaughter has been investigated by the Police in several healthcare cases, but to date there have been no prosecutions for Corporate Manslaughter for companies involved in the healthcare sector. Furthermore the offence of ill treatment and wilful neglect (established under the Mental Capacity Act 2005) has never been used against a corporate body, and the common view is that it is framed in such a way that it will never be used against a corporate body.
If Mr Lamb is serious about his intentions, a new law will be needed, which considers the roles of all corporate entities involved in the funding and operation of care homes. In the meantime all corporate bodies involved in any way in the healthcare sector should expect their role to be focused on more during the course of regulatory investigations. They should all consider if they need to take greater steps to monitor what goes on in the care homes that they have invested in, and seek advice regarding their legal responsibilities.