April 9, 2019 Legal

Service user relationships and CQC: Is the intrusive regulator acting beyond its remit again?


In February 2019, CQC issued guidance on ‘relationships and sexuality in adult care services’ and how providers should consider service users’ relationship and sexuality needs. CQC hopes that the guidance will provide clarity and direction to providers to help support service users to manage their sexuality needs and to assist providers to safeguard vulnerable service users in their care. Whilst the guidance does not carry the same regulatory weight as the Health and Social Care Act 2008 or its associated regulations, providers will be expected to be able to demonstrate the structures and systems they have in place to support this guidance. It accepted that whilst the guidance provides advice on important issues around sexuality and supporting service users’ needs, the wide scope of the guidance, which is intended to be referred to by both CQC inspectors and registered providers, leads to questions as to how the guidance will work in practice and how it will be tested in practice.
The guidance addresses a number of areas in a question style format prompting providers and inspectors to consider various issues including:
• When should providers assess a person’s sexuality needs?
• How can providers help people develop their understanding of sexuality and relationships?
• Can a best interests assessment be made in relation to a person’s consent to sex?
• What if someone lacks capacity to consent to sexual relations?
• How is someone’s capacity to consent to sexual relations assessed?
• Do care staff need specialist training?
• How are sexuality and relationships considered within the key lines of enquiry?
• How will this subject be reported in inspection reports?
Potential difficulties in implementing CQC’s guidance
In response to the new guidance, CQC’s Acting Chief Inspector of Adult Social Care, Debbie Westhead said, “We know that the best care is person-centred and in supporting relationships and sexuality there can be no one approach that fits all… This guidance aims to ensure providers are supporting people to form and maintain sexual relationships that meet their needs, while also helping them to understand risks.”
It is good CQC acknowledges that there is ‘no one size fits all’ approach but it is concerning that this guidance is so general that it fails to distinguish between different types of adult social care services. At Ridouts, we have seen instances where CQC inspectors have inspected supported living services as though they were care homes and failed to take into account the clear distinctions between the two. Under this guidance, there is a risk that in trying to draft general guidance which is intended to apply to all adult social care services, it has failed to recognise the unique differences between both services and the wide range of people within those services who will inevitably have different levels of tolerance for engaging with this issue.
Privacy and dignity issues
The guidance states on page 4 that, “Information is available online for professionals wishing to support disabled people with their sexual lives… There are also specialist dating agencies and online sites to help people form friendships and romantic relationships. Providers should be aware of the potential for people to expose themselves to risk via their online activity and contact with others. For example, people who use services and staff should be vigilant to the risk of scams and the potential for financial extortion through sexual blackmailing.”
In practice, it is going to be very difficult for staff to monitor service users’ online dating and be “vigilant to the risk of scams and the potential for financial extortion through sexual blackmailing.” This in itself raises concerns that in attempting to assist service users in this respect, staff will need to pry into service users’ online lives. Not only does this raise issues of privacy but the question also arises, how relevant is this area to everyday care delivery.
The guidance further states on page 4 that, “Information about relationships, sexual habits and intimacy should be gathered by staff who are confident and competent in this area. They may use specialist pictorial tools and prompts to help them talk about this. These conversations can contribute to the development and review of care and support plans.”
This once again, raises issues with privacy and dignity; many service users will be deeply uncomfortable in discussing such private matters with staff and may consider such conversations as an affront to their dignity. Indeed, many relatives of elderly service users who are moving into care may feel uncomfortable with this highly sensitive subject matter and line of questioning. It appears that CQC has based its guidance on the assumption that service users will wish to engage with staff on this issue; there is no suggestion that service users may not wish to engage with staff at all on this topic.
Consent and sexual safety in care

Sexual safety in care is another topical issue for CQC, following the case of CQC v Hillgreen Limited [2018], which highlighted the risks involved with service users who have a history of committing sexual offences living in residential care homes alongside other service users who are unable to consent to sexual relations. In December 2018, I wrote an article (which can be accessed on Ridouts’ website) on the Hillgreen case and detailed what practical steps providers can take to reduce risks. For example, carrying out comprehensive risk assessments of service users with a history of committing sexual offences and having detailed care plans with specific instructions on how staff should support service users.

On page 6 of CQC’s guidance, it states that, “There will be times when it is necessary to carry out an assessment of a person’s capacity to consent to sexual relations. By law, both parties must consent to sex… It is important that a person’s capacity to consent to sex is reviewed regularly. This is particularly important if it is likely to change or fluctuate.” Given the current difficulties with assessing consent under the Mental Capacity Act 2005 this is likely to cause further difficulties.
Conclusion
During inspections, when discussing service users’ equality and diversity needs, under this guidance CQC expects registered providers and managers to explain how their service supports people to meet their sexuality needs including any specific measures put in place. CQC is a regulator of standards, it should not prescribe the ways in which providers should support service users with their sexuality needs and drafting such guidance is evidence of the regulator acting beyond its remit.
Practically it is going to be very difficult for staff to support service users’ sexuality needs whilst also delivering everyday care to them. In an already heavily regulated sector, it is unlikely that this guidance will be welcomed by all providers. At Ridouts we are experienced in supporting clients with challenges to various issues with CQC. If you wish to discuss this guidance or require any further information, please do not hesitate to get in contact with us.

Article written by Anna-Maria Lemmer

Solicitor , Ridouts

www.ridout-law.com

About

We speak up for the independent sector. All news articles are published by editor Viv Shepherd.

Read more posts by Viv