Failures to care for vulnerable people: what lessons to draw?

The practices exposed by Panorama last week at Castlebeck’s Winterbourne View care home were profoundly shocking. The case continues to develop – several further arrests were made this week. Ghandi said that “a nation’s greatness is measured by how it treats its weakest members”. What we witnessed at that particular care home suggests our claims to greatness are debateable. And, of course, rumbling in the background we also have the Southern Cross debacle. There are grave concerns over the future of the country’s biggest private provider of care homes for older people. There appears to be a government guarantee on the table to see that residents are provided for, but no promise of a bail out.

Searching questions are quite rightly being asked. How can we have got into this situation? It is maybe rather late to be waking up to the issues here. Nonetheless, it is welcome that they are getting their moment in the spotlight. Let’s hope some positive changes result. But are the right lessons likely to be drawn from current troubles?

There are at least three lines of argument around the source of the problems:

  • The folly of relying on private provision
  • The failure by the state to regulate effectively
  • The role of organisational factors in delivering quality care

The folly of relying on private provision

This argument can take several forms.

First, for some on the political left, Castlebeck and Southern Cross, in their different ways, are seen as signalling the fundamental incompatibility between private providers and welfare services for the most vulnerable in society. The presence of a profit motive leads to poor and exploitative services. The risk of provider failure exposes many vulnerable people to the possibility of lack of continuity of care, upheaval and loss of their home. From this perspective the Panorama exposé might be seen as arriving at a fortuitous time – if it is going to arrive at all – because it has the potential to derail the Coalition’s plans for NHS reform. And it has been reported that the planned White Paper on public service reform has been postponed until at least the summer so it can be reworked. Co-incidence? It seems unlikely. But we can only speculate.

From this perspective the only solution is to remove the profit motive from the equation and return provision to the public sector.

This sort of argument lacks subtlety. Much social care was moved out of the public sector nearly two decades ago. It seems unlikely that if it were universally poor or economically non-viable it would have taken until now to find out.

So the second strand of argument is a more subtle version of the first. It comes in at least two flavours. First, it is conceded that there may be poor practice in the private sector, but it is argued to be a problem associated with the odd unrepresentative “bad apple”. This argument is often encountered in the regulatory literature being made by market apologists. It is usually found in close proximity to the argument that the imposition of some form of universal regulatory framework is a blunt instrument that would unnecessarily penalise the virtuous for the sins of the wayward few.

Another way to develop this strand of argument is to suggest that it isn’t private provision per se but the incentives and practices associated with particular business models that are the problem. Here Vince Cable’s instigation of scrutiny of the activities private equity firms is very much to the point. News of the consequences of the private equity approach, at Southern Cross at least, continues to arrive. If particular business models are judged to be problematic then the regulatory response needs to occur on a broader scale than the supervision of frontline service provision. Rather it would be about prohibiting certain types of activity or approaches.

The third strand of argument returns to some microeconomic principles. The question is whether welfare services for vulnerable households conform sufficiently to the assumptions of the market model to suggest that socially optimal outcomes are likely to be realised.

Social care provision does not really suffer from the classic market failures of the textbooks – there are no real economies of scale to act as barriers to entry and there are no issues with public goods. It could be argued that there are externalities associated with care provision, but they relate to the way in which failures of care impose disutility upon third parties. And the existence and significance of such externalities does not go uncontested.

Next we have information failures. There are certainly information asymmetries between provider and service user, and more serious information asymmetries between providers and purchasers of state-funded care packages. So there are definitely issues here.

But the real sources of market failure in the provision of social care – particularly to people with mental impairments – lie elsewhere. They are associated with the violation of assumptions about consumer rationality and choice behaviour, equal power and voluntary exchange, and transaction costs. Markets will impose discipline upon suppliers when consumers are willing and able to take their custom elsewhere if they are not satisfied with what they are offered. This is the spur to meet consumer preferences and deliver value for money. But in social care markets vulnerable service users – such as those with intellectual impairments or dementia – are often not able to fulfil this role effectively. The consumer is not in a position to demand quality and hold providers to account if they do not provide it. It is not impossible to elicit the views of vulnerable service users, of course, but it can require time, care and a person-centred approach. Without that their voices and choices may go unheard. And a poor quality provider is, one might suggest, unlikely to be putting additional effort in to gaining views on their inadequacies from their service users.

So the assumption that buyer and seller meet in the market with equal power, and any exchange that takes place is therefore voluntary, can be hard to sustain in relation to some social care markets. We know that some users are unwilling to complain or seek to switch provider because they are afraid that services will be removed from them as punishment. Equally, the transaction costs associated with switching provider are high. We know that switching providers will lead to some older people, for example, dying simply as a result of the upheaval – that is particularly an issue for forced relocations as a result of closing facilities, an issue that is likely to be highly relevant to the Southern Cross case.

So even if one is not inclined towards blanket rejection of market provision for social care, there are good reasons for thinking there are significant risks that markets will not work well for some of the most vulnerable services users.

The failure by the state to regulate effectively

It is already very clear that failures of regulation are a part of the story in the Winterbourne View case. CQC has apologised for failures to act upon information from a whistleblower. The local authority was criticised for not checking independently. In my experience, if the CQC says that a provider has a clean bill of health a local authority may well take that as good enough. The resources to re-inspect in order to double check can be limited.

So one might conclude from this case that private provision is not the problem, as long as the external regulator does its job properly.

Of course this position accepts that it is necessary for someone to keep providers on the straight and narrow. So implicitly it concedes that without oversight there is a strong possibility that the incentives facing private providers mean that poor services will result. In that sense it doesn’t contradict the previous arguments about private provision. Rather it is usually founded on the belief – if it’s thought through at all – that private providers bring sufficient benefits in terms of efficiency to justify using them. This belief is rarely tested in a holistic way – including checking whether the cost of external regulation is less than the saving from private rather than other forms of provision.

The question is whether external regulation can ever be sufficient to do this job. This is a topic about which there is considerable debate. Periodic inspections, even when they are looking at practices rather than paperwork, might well find that everything is in order on the day. But does that tell us much about day to day service delivery? There is evidence that inspections might well get provision to a appropriate standard for a period of time but the effect decays over time. Even where there are unannounced or short-notice inspections there are possibilities for gaming the system. It is no doubt the case that good inspection results have some correlation with good practice and performance. But the correlation is by no means perfect – as illustrated by the Baby P case.

Newer approaches such as risk-based, smart or better regulation are much talked about, but they bring with them challenges and assumptions. The risk-based approach assumes – at the high quality end of the scale – that good practices are resilient and organisational change is relatively slow. So inspection can be infrequent. Yet, the wheels can fall off quite rapidly in organisations. One unfortunate managerial appointment can lead to things slipping badly and an organisational culture being poisoned.

That isn’t an argument against seeking and implementing more reflexive and effective forms of regulation. It is to recognise that even state of the art regulatory practice has limits. External regulation alone will never be the answer. For those interested in the state of the debate the recent Oxford Handbook of Regulation is a good place to start.

Effective regulation requires the internalisation of appropriate norms so that providers conform to desirable practice even when there is no threat that anyone is going to turn up and check.

The role of organisational factors in delivering quality care

From a regulatory perspective one is looking for organisations to internalise appropriate norms and therefore adhere to good practice of their own volition. A similar point can be reached starting from an organisational perspective. Rather than argue that the issue is private ownership or ineffective external regulation the focus is upon inadequacies of leadership and management, a toleration of behaviours that are not just unacceptable but degrading and inhuman. The Panorama evidence on events at Winterbourne View started from the practices and behaviours of individual staff members. But it has rapidly to move to questions about how the management can be so negligent and failures of oversight so great that these practices were either tolerated or went undiscovered.

Questions have to be asked not only about day to day management but also recruitment and screening of staff, and their socialisation into organisational culture, norms and expectations. Particularly where care is being provided remotely in people’s homes, the carer-service user relationship is paramount. While management has oversight, a staff member’s ethical and moral position fundamentally shapes the service provided. My indirect experience of recruitment in the care sector is that a lot of effort has to be put in to screening staff to identify those who have the right values and orientation towards care for vulnerable people.

Some have also pointed to wage levels in the Winterbourne View case. Adequate wages are important. If you want someone to treat others with respect then they should themselves be treated with respect and not exploited. But it seems hard to argue that the payment of a few pounds more an hour would have prevented staff physically abusing residents. Those are ethical and moral, not financial, questions.

Connor Kinsella offered a very thoughtful and informed blog post in response to this case which asked why such horrific events keep recurring. He places the focus squarely on the management and culture of the organisations themselves. This is important for many reasons, not least because it means that there should be no sectoral complacency – poor practice can be encountered in the private, public or voluntary sector if organisations are badly run and do not engrain an ethic of care .

Narrowing the focus to regulation

Given a context in which the Government has aspirations – albeit rather vaguely articulated aspirations – to see more services moved out of the public sector and in to the private or voluntary sector, these are issues of the utmost importance.

The context also suggests that arguments founded on the premise that private provision is inappropriate are unlikely to gain traction. We aren’t going to see the return of provision to the public sector any time soon. There might be some greater regulation of certain types of organsiational structure and finance, but the power wielded by unaccountable private equity firms is considerable. Change will be difficult.

Similarly, the scope for influence at the level of detailed organisational leadership and management practice is limited, except through external regulation. So I would expect that the focus of any response to these problems will narrow to discussion of ways to increase the effectiveness of external regulation.

While this can be important, we should be under no illusion that it will deal with the problems. So sooner or later there will be more cases.

It would be better, in my view, to recognise that there are limits to the marketisation of services. There are risks to effective care associated with relying on private provision which – in specific circumstances – outweigh any putative benefits in terms of efficiency.

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