A Better Home Life - A code of good practice for residential and nursing home care - Centre for Policy on Ageing.
Sound management and administration provide the foundation for
running a home well and for ensuring that the principles of high
quality care and respect for residents can be put into practice.
6.2.1 A fit person
Under the Registered Homes Act 1984 a person registered must be
a fit and proper person to run a home. This means he or she should
be trained and capable of managing a home and have the relevant
business and professional experience. He or she must not have
a criminal record nor have been barred from running a home by
another registration authority. Since 1991, the registration authority
can check whether new applicants for registration have criminal
records; they can also request retrospective checks on existing
registered persons if they can show sufficient cause for concern.
In the case of nursing homes, the person in charge, although not
necessarily the registered person, must be a level one qualified
nurse or registered medical practitioner.
6.2.2 Fitness of premises
The premises must be judged suitable by the registration authority
for use as a home in terms of their situation, construction, state
of repair, accommodation, staffing and equipment.
6.2.3 Fitness of purpose
The registration authority must also be assured that the services
and facilities offered meet the home's stated aims and objectives.
These relate to choice, privacy, the opportunity for consultation,
and general accommodation and services for residents.
The tasks of a manager include the management of staff, the supervision
of care (in the case of nursing homes), the efficient administration
of the organisation (record-keeping, domestic organisation, legal
matters, financial affairs, upkeep of the buildings and gardens),
the management of supplies, support services such as laundry,
cleaning, catering and gardening. Perhaps most importantly, the
manager of the home is responsible for setting the tone and style
of the home in terms of its efficiency, its probity, its concern
for residents and staff, and its relationships with the outside
world. A good leader can have a major impact on the way care is
delivered and the standards which are achieved.
6.4.1 Records
Certain records, detailed in the Residential Care Homes Regulations
1984 and the Nursing Home Regulations 1984, must be open to inspection
by the registration authority on request. Personal details in
these records should be kept in a secure place and access should
be limited to those with overall responsibility for the day-to-day
care of the resident. Anyone who has access to records should
be instructed in the proper handling of confidential information.
Managers and staff should be adequately briefed on issues relating
to confidentiality and access to case files.
As well as those records required to be kept by law, such as personal
details and next of kin, the home should keep other records:
6.4.2 Residents' access to personal records
It is good practice for staff to share information with residents
in the context of an open, professional relationship. Residents
who wish to have access to their health records have a right in
law to do so (Access to Health Records Act 1990). Under the Data
Protection Act 1984, except in exceptional circumstances, people
have the right of access to computerised records held on them.
In some instances, counselling should be offered where sensitive
information is disclosed. Some additional guidelines should be
observed:
Homes should produce an 'aims and objectives' document underpinning
the day-to-day work of the home which is regularly reviewed and
updated. The home must display its certificate of registration,
the only exception being homes catering for fewer than four residents.
However, good practice suggests that displaying the certificate
is a way of assuring prospective residents and their families
and friends of the registered status of the home and even in the
case of smaller homes it may be better to display the certificate.
Records must be kept which set out details about the home and
which must be available for inspection by the registration authorities.
They should include:
Under the regulations, residential care homes must keep records
of residents for three years from the last entry. Nursing homes
must retain case records for a year.
Other records which must be kept will relate to safety:
Other documentation should include:
Financial systems should be in place which record:
6.6.1 Fee levels
Details should be set out clearly in agreements entered into at
the time of moving into the home. They should specify in detail
what is included in the fee and what services or elements of care
are costed and charged for separately.
6.6.2 Increases in fees
Advance notice of any increase in fees and any consultation process
should always be given. This is important both for individuals
funding themselves and for residents who are funded by other sources.
Local authorities will be closely involved in any changes in existing
fee levels, particularly in relation to their contractual arrangements
and service specifications with homes. Residents should not have
to move because of changes in their funding arrangements if they
are otherwise satisfied with the home. Neither should they have
to move because of funding disputes between authorities or between
an authority and the home.
Homeowners, managers and staff should never under any circumstances
control residents' money. To do so may lay them open to suspicion
of malpractice. Control of one's own finances is an important
way of being able to be in control of one's life. In line with
this, residents should handle their own money as far as they are
able. If they can make their own arrangements for collecting their
pensions they should be encouraged to do so. Where staff from
the home act as agents and collect pensions in bulk, individual
residents should receive their payments in private. When systems
are in place in which staff have responsibility for the handling
of residents' money, the registration authority should be informed
of the arrangement and of the safeguards established to protect
residents' interests (for example, residents should always sign
that they have received the money). In some cases, homes may be
able to operate a cheque-cashing service which may help residents
who cannot get about easily.
Residents should be made aware that they are responsible for the
safekeeping of their own money, documents such as pension books
and other valuable possessions, unless they are unable to do so
because of mental impairment. Residents should have a secure,
lockable place within their own room for money and other personal
valuables. Alternatively, if they wish, they should be able to
place their valuables in a secure facility such as a safe or a
lockable cupboard in, for example, the manager's office, with
access strictly limited and controlled by the homeowner or manager.
A clear record of this should be kept by the resident and the
manager.
Money collected for the benefit of the residents as a whole or
for the home should not be used for routine expenditure. Residents
should have a say in how it is spent. This means that there should
be established ways of gathering residents' views in the home
so that collective decisions can be made about how the money is
used. The money which is collected should be lodged in a separate
bank account with regular statements being made available to
residents.
6.9.1 Appointments of agents, appointees, attorneys and trustees
by residents
Agents and appointees
A resident may nominate a relative, friend or someone in the community
over the age of eighteen to act as his or her agent in drawing
and making payments. There is a well-established procedure for
doing this for social security payments. If the resident wants
a third party to operate his or her bank account then he or she
can instruct a bank accordingly. When there is no relative or
friend available whom the resident trusts, the Department of Social
Security (DSS) should be asked to recommend someone to act as
agent.
The homeowner, manager or staff members should not take on this
role unless it has proved impossible to find an alternative. The
DSS should be notified of residents for whom this arrangement
is made. Such arrangements should be strictly limited to weekly
payments and should not apply to any capital or assets.
In some circumstances, a relative, friend, or someone in the community
such as an advocate, may become an appointee, able to make claims
for and receive and deal with state benefits on behalf of the
resident. In order to do so, an application needs to be made to
the local DSS office. Social security regulations state that the
claimant must tee 'unable for the time being to act'. This usually
means that the person does not have the mental capacity to look
after his or her financial affairs, because of dementia, disease,
or learning disability. Occasionally, the problem might be temporary,
for example because of a serious accident.
The person to be appointed must demonstrate to the DSS that he
or she would make the most suitable appointee and show an active
interest in the welfare of the individual. Where an owner or manager
is made an appointee the registration authority must be notified
and individual records must be kept for inspection of monies coming
in and going out. Once accepted, an appointee has a duty to ensure
that the resident will get the full benefit of the payment made
and that any changes in the circumstances of the resident which
may affect his or her benefits are promptly reported.
Appointment under the social security regulations comes to an
end: if it is revoked by the DSS; if the appointee resigns after
giving one month's notice; or if the DSS is told that a receiver
has been appointed by the Court of Protection for England and
Wales, or a curator bonds (or other judicial factor) has been
appointed by the Sheriff Court or Court of Session in Scotland,
or in Northern Ireland the High Court appoints a controller of
the person. The DSS must also be notified if either the claimant
or the appointee dies.
Power of attorney
A power of attorney is an arrangement by which one individual
(the donor) gives authority to another or others to act on his
or her behalf. The attorney is required to act as if he or she
were the donor. Appointing an attorney might be a good idea if
a resident has difficulty getting out to the bank or building
society, or has difficulty signing cheques or documents. However,
power of attorney (like agency) cannot be used where the person
does not have the mental capacity to give authorisation to the
attorney.
The power can be used in specific or general areas of managing
income and capital. Copies can be shown to banks, building societies,
pension funds or insurance and pensions companies when required.
At any time the donor can cancel the power of attorney. The attorney
must demonstrate that he or she is taking proper care of the donor's
affairs and may be sued for any loss due to insufficient care.
It is very important to realise that in England, Wales and Northern
Ireland a power of attorney is automatically cancelled by operation
of law when the individual loses mental capacity to manage his
or her own affairs. An attorney who then continues to act is doing
so without authority and is liable to be sued. Instead, the attorney
should stop acting. The person's affairs may then have to be handled
by the Court of Protection in England and Wales or the High Court
and the Office of Care and Protection in Northern Ireland.
In Scotland it is possible to have a continuing power of attorney
which is still valid even if the person loses capacity. The original
document should state whether or not it continues after loss of
capacity, but there does not have to be a special form like the
enduring power of attorney (see below) and the deed does
not have to be specially registered.
Enduring power of attorney
Unlike an ordinary power of attorney, in England, Wales and Northern
Ireland an enduring power of attorney (EPA) can continue in force
even if the individual loses mental capacity. EPAs are often made
by older people who are aware of failing mental faculties, but
still have capacity to understand what is involved in creating
an EPA. The EPA can give the attorney general power to act in
relation to the donor's property and affairs, or can relate to
specific items. An EPA must be made in a prescribed form laid
down by law, and the person may wish to consult a solicitor or
legal advisor and may appoint a solicitor or social services department
to act as an attorney under an EPA. More often, the attorney chosen
will be a son or daughter, spouse or other close relative.
An attorney under an EPA must take proper care of the donor's
affairs and also takes on certain special duties. As soon as the
attorney believes that the donor is or is becoming mentally incapable
then the attorney must stop acting until the EPA has been registered
by the Court of Protection in England and Wales or by the High
Court in Northern Ireland. Again, this must be done in the correct
prescribed form, with certain relatives of the donor (laid down
by law) being informed. Once the EPA is registered, the attorney
can safely start acting again. An EPA may, alternatively, stipulate
that it should take effect only if mental incapacity should occur,
in which case it would first need to be registered as above.
Court of Protection
In England and Wales the Court of Protection exists to protect
the interests of people who are unable to manage their own financial
affairs because of mental disorder. The term 'mental disorder'
is a legal label which includes dementia, learning disabilities
and mental health problems.
The Court usually delegates power over the income of the person
to a 'receiver' who can handle day-to-day matters. Capital is usually
retained on deposit by the Court. Anyone can apply to be a receiver,
giving full details of their finances and family situation (and
paying a Court fee). Often a relative or solicitor applies, but
it would be appropriate for someone such as an advocate to do
so.
The responsibilities of the receiver are detailed in a handbook
issued by the Court. The receiver is required to handle all financial
transactions for the benefit of the person. All dealings are monitored
by the Court which requires the submission of annual accounts.
An annual fee is usually payable to the Court.
In Northern Ireland, the interests of people who are unable to
manage their own financial affairs because of mental disorder
are looked after by the High Court and the Office of Care and
Protection. The High Court may delegate power over the income
of the person to a 'controller' whose powers are the same as those
of a receiver.
Curator Bonis (Scotland only)
If a resident is unable to manage his or her financial affairs
due to mental disorder, a curator bonds can be appointed. The
appointment is made by the Sheriff Court on the basis of two medical
reports. The curator takes over full responsibility for handling
the person's finances and is required to follow detailed rules
and act under the supervision of the Accountant of the Court.
Trusts
Alternatively a resident may decide to set up a trust to manage
his or her affairs. This is normally worth doing only if there
are substantial assets but it has the great advantage of continuing
to be valid even if the resident should cease to be mentally competent.
Tutor dative (Scotland only)
A tutor dative is a kind of personal guardian. The tutor can exercise
a range of powers on behalf of a person who is unable to act because
of mental disorder. The powers can include deciding where a person
should live, consenting on his or her behalf to medical treatment,
deciding who should have access to a person, and initiating medical
treatment.
Tutors are usually relatives, but others can be appointed. Strictly,
they are decision-makers, not advocates. However, many tutors see
the value of the appointment as giving them a 'voice' and status
with service providers.
Guardianship
Under the Mental Health Act 1983 in England and Wales and the
Mental Health (Scotland) Act 1984, a person who has one of four
specified forms of 'mental disorder' may be received into guardianship
if it is necessary for his or her own welfare or the protection
of others. The guardian will almost always be the local social
services/work authority as this form of 'guardianship' is a way
of seeking compulsory control over a person who needs help. The
guardian has the power to require the individual to live at a
particular place, to attend particular places for medical treatment,
occupation or training, and to require access to be given to doctors,
social workers and others at any place where he or she resides.
Application for guardianship is made to the local authority and
must be supported by two doctors and an approved social worker
or in Scotland a mental health officer.
Under the Mental Health (Northern Ireland) Order 1987, a person
who has one of two specified forms of mental disorder may be received
into guardianship if it is necessary for his or her own welfare.
The guardian is generally the local health and social services
board. The guardian has the same powers as in England and Wales.
Application for guardianship is made to the local health and social
services board, usually by an approved social worker, and must
be accompanied by two medical recommendations and a recommendation
by an approved social worker who is not the person making the
application.
6.9.2 Homeowners' and managers' responsibilities
Homeowners have no legal obligation to defend the interests of
residents who are no longer capable of looking after their financial
affairs. However, they do have a duty to safeguard and promote
the welfare of residents and it is recommended that they should
initiate appropriate action when there is nobody else capable
or willing to do so. Prior discussion with the registration authority
is essential. If referral to the Court of Protection, the Court
of Session or the High Court seems indicated, the appropriate
action would be for the homeowner to draw the matter to the attention
of the resident's GP and if he or she indicates a willingness
to provide the necessary medical recommendation then, in the absence
of any appropriate person, the homeowner should contact the Court
for advice and if necessary make the application himself or herself.
Under no circumstances should anybody connected with the running
of the home be appointed receiver.
As noted, those involved in the running of residential and nursing
homes have no obligation to see that the law is complied with
where residents' financial affairs are concerned, save where they
become involved themselves in some way. However, if they feel
that something (not necessarily of a legal nature) is going wrong,
and the resident is unable to deal with it, homeowners should
draw their fears to the attention of relatives or the registration
authority, whichever is more appropriate.
This duty in no way contradicts the essential principle that all
those connected with the running of a home should not become involved
in the handling and management of a resident's financial affairs.
Homeowners and managers are potentially vulnerable to accusations
of misconduct. Suggestions of impropriety may be hard to dispel
even if they are without foundation.
A resident with a progressive illness which could lead to loss
of decision-making capacity in the future may wish to record his
or her views about health care options. This might cover issues
concerning refusal of treatment, requests for treatment and purposes
of treatment. If the person then loses capacity and cannot participate
in health care decisions, those involved in treatment and care
would be able to take the previously expressed views into account.
If the views are written down then the document is often called
an 'advance directive' or 'living will'.
There is no legislation about living wills in the United Kingdom.
There is some relevant English case law regarding advance directives
to refuse particular treatment. However, there are many complex
considerations and interests involved and the position is not
clear in every possible situation.
6.1 Introduction
6.2 Fitness
6.3 The role of the manager
6.4 Record-keeping in relation to residents
6.5 Management and administrative records
6.6 Fees
6.7 Residents' money
6.8 Group money and the home's amenity fund
6.9 Legal issues
6.10 Advance statements about health care
(living wills)