Keebles Healthcare Special Report - Care Homes - June

Special Report Healthcare - Care Homes

June 2019

The UK’s ageing population is placing ever greater demands on our care, nursing and residential homes. However, the increasing pressures that both government and compliance are placing on the owners and managers of our care homes is making it harder for them meet that demand. This special report has been designed to ease a little of that pressure. We’ll look at some of the key legal issues affecting the care sector and offer practical suggestions as to how care home owners and operators can side step them should they arise. The content of the report has been written by the members of Keebles’ specialist healthcare team, all of whom are working with clients in the care sector on a daily basis and all of whom are ready to help you with any legal questions you may have regarding the successful running of your practice.

Richard Smith Partner & head of Keebles’ specialist healthcare team

Specialist corporate and commercial advice for care home owners

The corporate and commercial solicitors in our healthcare team are:

Rory Conwill Senior Associate t: 0114 252 1411 e: rory.conwill@keebles.com

Henry Hill Associate t: 0114 252 1441 e: henry.hill@keebles.com

Building data compliance on solid foundations

The landscape of data protection regulation recently underwent the most significant changes in its history when the new General Data Protection Regulation (GDPR) came into force on the 25 th May 2018. Confidentiality sits at the heart of the primary care sector; data protection is something every care home strives to get right and for that reason, many healthcare organisations will already be keenly aware of the risks of breaching data rules and will have put measures in place to keep patient information safe. But, in an environment where highly sensitive personal data is “bread and butter” to a medical professional’s working day, could staff lose sight of the potential risks of mishandling that data? Care homes, like so many other companies and organisations, are rapidly becoming more and more technologically advanced in terms of digitalising records, communicating digitally with residents and transmitting sensitive personal data electronically. It is therefore vital that care homes re-familiarise themselves with the reasons behind the protection they already have in place then risk-review their current working practices to ensure that they will continue to stand up to scrutiny now GDPR is in place.

Personal Data and Sensitive Personal Data

Personal data is classed as any data which can directly or indirectly identify a living individual such as names, addresses, dates of birth and telephone numbers of patients and staff. Sensitive personal information falls into a special category of personal data. Special category personal data includes data relating to racial or ethnic origin, health, sexual life and sexual orientation, all of which are categories health professionals will deal with as routinely as any other personal data. And remember, the rules apply equally to records held on paper as they do to those held digitally.

Processing data

‘Processing’ personal data covers a wide remit of activities over the entire lifetime of a piece of data: collecting it, recording it, storing it, consulting and using it, sharing it with others and eventually deleting it. It is important to remember that any processing activities will only be legal if a data controller can demonstrate that it can rely on one of the several “legitimate bases for processing” as set out in the new regulations. These bases differ for sensitive personal data.

Legitimate processing

None of the legal bases for processing personal data is better than any other; most of the bases require the particular processing step to be ‘necessary’ and, in most cases, if staff are carrying out their normal work tasks, there shouldn’t be a problem. One thing that should be kept in mind though is that the new regulations make it a requirement for the reasons for processing the data to be recorded.

For ‘ordinary’ personal data, one of the following reasons for processing must exist and be recorded:

Consent:

Under the GDPR individuals will need to be given sufficient information about the reasons their data is being requested so they can make fully informed and free choices. Where consent is given verbally, a record should be kept of how the consent was obtained and exactly what the outcome was. Gaining consent may be a difficult option for healthcare organisations to rely on as the balance of power will often mean that a data subject feels that they have no choice other than to consent. This means other bases might provide a clearer way of demonstrating compliance.

Vital Interests:

You can process personal data if it is necessary to protect someone’s life, i.e. if a critically ill resident is and is unable to give or decline their consent.

Public Task:

You can process personal data if it is necessary to perform an identifiable public duty or to exercise a power conferred by law. This might be particularly relevant to scientific research purposes.

Legitimate Interests:

You can process personal data if you have a legitimate interest in doing so and your interest does not cause any unjustified harm or run contrary to what the data subject might reasonably expect to be done with their data.

For ‘sensitive’ personal data, further reasons for processing must exist. These must be recorded in addition to one of these six main reasons for processing. There are nine provided for in the GDPR and the Data Protection Act 2018 (which implements the EU law in the UK) will provide further guidance. Examples that might be relevant to a medical or dental practice include: • Where specific consent is given • For medical diagnosis and provision of health or social care or treatment • For reasons of public health

In summary, the GDPR should not impinge on the proper provision of healthcare services or the running of care homes.

Data Protection Officers

Some care homes, including those owned by a local authority or the NHS, will be classed as a “public authority” under the new legislation. Under the GDPR, public authorities and organisations that carry out processing of sensitive personal data on a large scale must appoint a Data Protection Officer (DPO). The DPO will take responsibility for making sure care homes know and understands their responsibilities with regard to data protection. This person also needs to monitor compliance by ensuring staff receive training, ensure internal audits are carried out and recorded and liaise with the relevant authorities or data subject in the instance of a data breach or data subject access request. The DPO can be an existing employee and a single DPO can be appointed for a group of companies or authorities, depending on their size and reach. Getting the basic foundations right will enable your care home to plan and prepare for any changes that may need to be made to ensure compliance with the new Data Protection regime and ensure your processing activities can be justified and that you remain accountable to the residents and staff whose data you need to deal with every day. If you have any concerns about the potential effects the GDPR may have on your practice please call Sarah Power on 01302 380 216 or email Sarah at sarah.power@keebles.com.

Sarah Power Associate t: 01302 380 216 e: sarah.power@keebles.com

Specialist property advice for care home owners

The property solicitors in our healthcare team are:

Richard Smith Partner t: 0114 252 1419 e: richard.smith@keebles.com

Charlotte Harris Senior Associate t: 0114 252 1464 e: charlotte.harris@keebles.com

Clare Darwood Associate t: 0114 290 6266 e: clare.darwood@keebles.com

Purchase of Land for the Construction of a New Care Home

If you are looking to expand your care home business but cannot find a suitable existing building, you may be considering the purchase of a plot of land to construct one from scratch. These are two types of agreement to consider when buying a development site:

1. Option to Purchase

An option to purchase, commonly known as a call option, is an agreement in which a landowner would grant you the right to purchase land within a specified timeframe. During this period, you can decide whether or not you want to commit to buying the land or property. If you do decide to purchase, you can 'call' on the landowner to proceed with the sale. If, however, you decide that you do not want to buy the land, you would not be obliged to do so at any point, and the landowner would then be free to sell it to another party at the end of the agreed timeframe. Another type of option is a pre-emption agreement, where the landowner has to offer the property to you before they are able to sell it to anyone else within a specified timeframe.

2.

Conditional Contract

A conditional contract is similar in that you would not be bound to purchase a piece of land until certain conditions are satisfied. Typically, such a condition might be you obtaining satisfactory planning permission for your proposed development of the land. Once planning permission is obtained, then the sale of the land will proceed on the terms set out in the conditional contract. If it is not obtained, then you would not be obliged to proceed with buying the land. Care must be given when defining the conditions of such an agreement, otherwise you might find yourself lumbered with a property and planning permission which would make either the construction or the operation of the new care home economically unviable or impracticable.

The Difference Between the Two

Both types of agreement are advantageous to care home developer as they both provide a degree of flexibility when considering the purchase of a piece of land.

The important distinction is that under an option to purchase, you would have an absolute discretion as to whether to go ahead with buying the land, whereas under a conditional contract, you would be bound to complete a purchase once the conditions of the contract are met.

Charlotte Harris Senior Associate t: 0114 252 1464 e: charlotte.harris@keebles.com

Specialist dispute resolution advice for care home owners

The dispute resolution solicitor in our healthcare team is:

Andrew Broadbent Senior Associate t: 0114 252 1416 e: andrew.broadbent@keebles.com

8 ways care home owners and managers can manage late payment from local authorities more effectively

If a local authority is providing the funding for a resident complications can often arise, particularly if that local authority is responsible for the funding of a number of residents. Managing any late payments can be an unpleasant and emotive task but if you, as the manager or owner of your care home, employ a combination of consideration and resolve and follow these 8 tips your credit control shouldn’t get out of hand:

Always consider the sensitivities involved when chasing payment

Even though the local authority may be responsible for the resident’s payments, this may ultimately impact on the residents involved and/or their families. There is a balance to be struck between taking a firm approach and understanding the emotions involved for family or close friends.

Don’t put things off

It is vital that payments are monitored and prompt action is taken when arrears start to accrue. This will prevent the amounts owed becoming unmanageable and will lessen the impact on cash flow.

Assess all options available if payment is not received

Often the final step would be to issue proceedings against the local authority but given the potential cost consequences of doing so, it is always sensible to consider alternative options available.

Consider alternative dispute resolution

Many contracts with local authorities will include dispute resolution clauses which will set out a prescribed procedure for dealing with disputes. Contracts are also likely to dictate that the parties should meet in the first instance to attempt to reach a mutually acceptable resolution … which brings us on nicely to our next point.

Always maintain a careful record of any contractual documentation

Make sure you keep all of the paperwork relating to the local authority’s involvement and record any agreed changes to its content. If a dispute arises it is important to be able to lay your hands on the most up to date terms so that any appropriate steps can be taken.

Always consider the wider impact of taking action against the local authority

Often a local authority will be providing funding in respect of a number of residents. Therefore there is potential for wider implications of taking an unreasonable approach with a local authority.

Consider whether certain clauses can be included within local authority contracts

There may be potential for including a fee review clause in which fees are increased in accordance with inflation or the national minimum wage. Of course, there may be situations where a local authority is unwilling to negotiate but often there is little to be lost in attempting to do so.

Take advice early

As mentioned earlier it is always easier to resolve a dispute in its early stages whilst the total fees involved are relatively low. Taking early advice from an appropriately qualified/experienced solicitor is likely to be much more cost effective in the long run.

Andrew Broadbent Senior Associate t: 0114 252 1416 e: andrew.broadbent@keebles.com

Specialist HR and employment advice for care home owners

The employment solicitor in our healthcare team is:

Charlotte Ollerenshaw Associate t: 0114 290 6286 e: charlotte.ollerenshaw@keebles.com

The successful formula for recruiting and retaining staff and maintaining the best levels of performance

Attracting and retaining loyal and talented staff in today’s fiercely competitive climate remains a perennial challenge for care homes of every size and in every location. The desire to fill empty vacancies can force some employers into making bad recruitment decisions without considering how these decisions are likely to affect morale and productivity. It’s safe to say that getting the recruitment process right has never been as important.

To help you successfully recruit the best candidates we have prepared this very short checklist:

• Make sure the HR personnel, line managers and supervisors involved in recruitment are properly trained.

• Make sure the key requirements of every job description are clear. Careful drafting will help form the basis of the selection criteria and demonstrate that you, as the employer, are following a fair, objective and reasonable process for selection. • Ask every candidate the same questions and leave out any questions that could be misinterpreted as being discriminatory because candidates can bring a discrimination claim even if they are not taken on. • Once you’ve selected the right candidate, don’t make an unconditional job offer. Always confirm any offer with a formal offer letter for the successful candidate/s and make certain that offer is conditional on satisfactory references, work qualifications and evidence. Your offer letter should cover the main terms of the offer and the length of any probationary period so everything is clear from the start. • If an unconditional offer of employment is accepted by the employee, you risk breaching the contract if you later try to withdraw the offer in the event you, for example, receive a bad reference. • Employment contracts should meet the requirements of Section 1 of the Employment Rights Act 1996 and must be issued within two months of staff starting their new role. If you feel your contracts do not meet those requirements, please get in touch and we can review your existing contracts. • In light of GDPR, ensure your care home has a Data Protection Privacy Notice specifically for recruitment candidates.

Once you have found the right person, your next challenge will be to develop and retain them to protect yourself against the possibility of your talent walking out of the door with a wealth of experience, practice knowledge and strong patient relationships. A myriad of studies in recent years have concluded that happy employees are pivotal to boosting productivity and profitability. Our clients have told us that when it comes to keeping employees happy the most effective incentives include parking and car allowances, flexibility around working from home, share options, bonuses and extra holidays. Long service awards, medical cover, corporate discount on gym membership and team building days are also proving popular. While strong performing staff will go a long way to sustain your care home’s success unfortunately not every employee may be up to scratch in delivering their duties to the required standard. The best way to approach underperformance is to tackle it quickly and tackle it head on. Set clear expectations of how your staff should perform and conduct themselves, hold one-to-one meetings and appraisals to support and train them and use probationary periods to reduce notice periods.

If you’re unsure as to whether informal or formal performance management is the best way forward, we’d always urge you to start the formal process sooner rather than later. To do that, your care home will need to have a disciplinary procedure in place but, as with all areas of employment law, the rules governing these procedures are ever-changing so always ask advice from solicitors who can show they have a long and successful history of working with care home operators.

Charlotte Ollerenshaw Associate t: 0114 290 6286 e: charlotte.ollerenshaw@keebles.com

T +44 (0)114 276 5555 keebles.com For a list of our offices visit our website.

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