How CQC identifies and responds to closed cultures

Contents

1. Introduction
2. What is the potential impact of closed cultures on human rights and equality?
3. What are the signs of a closed culture?
4. How do we identify a closed culture?
5. Action we will take where we find concerns

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1. Introduction

Our definition of a closed culture

We define a closed culture as 'a poor culture that can lead to harm, including human rights breaches such as abuse'. In these services, people are more likely to be at risk of deliberate or unintentional harm.

Any service that delivers care can have a closed culture.

The abuse at Whorlton Hall, Winterbourne View, Mid Staffordshire Hospital and other services have highlighted the extremely damaging effects a service with a closed culture can have on people.

Purpose of this guidance

This guidance:

• highlights the impact of closed cultures on people's human rights and provides examples of potential breaches of our fundamental standards where people's human rights are at risk.
• raises awareness of the signs we look for that may suggest a service is at risk of developing, or has developed, a closed culture, and what to expect on an inspection.
• applies to all services and settings where people who are less able to self-advocate may receive care. This includes mental health and acute hospitals, care homes, GP practices, ambulances and community settings.
• describes the steps we will take if we find evidence that suggests people are at risk of harm or have experienced harm or abuse.

2. Potential impact of closed cultures on human rights and equality

"My daughter was held down by nurses on an inpatient unit. I think it happened as she gets frightened around strangers, as people with autism often do. She felt incredibly frightened and tortured. Since then she has had a full sensory assessment, it shows she has sensitivities to smell, taste, touch, noise and bright lights. Services should understand human rights."

People using services that have closed cultures are more likely to be at risk of abuse, avoidable harm and breaches of their rights under the Human Rights Act 1998 and the Equality Act 2010.

As the regulator and a member of the UK National Preventive Mechanism, we have a duty to act when we believe someone's human rights may not be protected. This can be done in two ways:

• Through our regulatory framework – as equality and human rights are embedded in our fundamental standards, if services do not meet the legal requirements set out in our regulations, we can take action to ensure they improve. This includes considering civil or criminal enforcement action.
• Through the Equality and Human Rights Commission (EHRC) – if we consider that a person's rights are being infringed, but these fall outside of our statutory powers, we will consider whether a referral to the EHRC is appropriate.

The following section provides examples of scenarios where there may be potential breaches of key equality requirements and human rights articles, and which CQC regulations these may also breach.

Examples of potential breaches of people's human rights and related CQC regulations

Scenario 1: Decisions are made about a person's care that leads to disproportionate and unnecessary infringements on their liberty.

• Providers must take a person's right to liberty into account where they are considering using seclusion, long-term segregation and restraint, or where people are unable to leave the service of their own free will. If taking these actions, the provider must make sure that they are being carried out correctly within legal frameworks, such as the Mental Capacity Act 2005 (including the Deprivation of Liberty Safeguards) and the Mental Health Act 1983. This includes making sure that they have appropriate safeguards and reviews in place.

Related CQC regulations: Regulation 9: Person-centred care and Regulation 13: Safeguarding people from abuse and improper treatment

Human rights article: Article 5: Right to liberty and security.

Scenario 2: Decisions are made about a person's care that leads to disproportionate and unnecessary infringements on their privacy, dignity and enjoyment of a family life.

• How care is planned and delivered must be in line with people's right to receive dignified and respectful care. At the heart of this is making sure that people have access to family and that they are given privacy.

Related CQC regulation: Regulation 10: Dignity and respect

Human rights article: Article 8: Respect for your private and family life.

Scenario 3: A person using a service is placed in a potentially life-threatening situation because of the standard of the care planning or delivery they are receiving.

• This includes decisions and actions taken in services where the person lives. For example, staff not properly investigating life threatening health conditions. For people with a learning disability or dementia, this may include staff not identifying symptoms because they do not pick up on behavioural cues from the person.
• It also includes working in partnership with other services. For example, during COVID-19, some services incorporated blanket DNACPR (do not resuscitate) decisions into end of life care plans without the correct decision-making processes for individual people. (See Protect, Connect, Respect - Our review of ‘do not attempt cardiopulmonary resuscitation' decisions during the coronavirus (COVID-19) pandemic). Not consulting with other services could also be a potential breach of Article 8: Respect for your private and family life.

Related CQC regulation: Regulation 12: Safe care and treatment

Human rights article: Article 2: Right to life.

Scenario 4: A person using a service experiences ongoing and serious suffering amounting to inhuman or degrading treatment because of the standard of care planning or delivery they are receiving.

• This relates to all aspects of a person's treatment and or care planning and delivery, including care provided by external agencies. For example:

• failing to meet people's basic needs, such providing adequate toilet facilities or drinks.
• failing to allow people to have regular access to fresh air, or to a member of staff so someone can ask to go outside or to a toilet.
• failing to make clear to external professionals the communication needs of a person, if this results in serious suffering.

• The provider must make sure they have robust safeguards in place to prevent this from happening.

Related CQC regulation: Regulation 13: Safeguarding service users from abuse and improper treatment.

Human rights article: Article 3: Freedom from torture and inhuman or degrading treatment.

Equality Act 2010 – key considerations

Under the Equality Act 2010, people who use services have the right not to be discriminated against on the basis of protected characteristics, such as their sex, age, ethnicity, disability, religion or belief, sexual orientation, or gender identity – or even perceived protected characteristic, such as perceived sexual orientation. If staff are bullying or taunting people at a service because of their disability or ethnicity, this would amount to a breach of our regulations.

Disabled people also have a right to ‘reasonable adjustments' to make sure that they do not experience a lesser standard of care simply based on their disability. As outlined in the Accessible Information Standard, reasonable adjustments help people to communicate.

Services with a closed culture may be less likely to make reasonable adjustments. For example, adjusting the environment to meet the sensory needs of autistic people, or providing people with mobility or cognitive impairments with easy access to mobility aids, and community health care services, such as GP or dentist practices to ensure that physical health needs are met. For services where people live, or are admitted to for treatment are reasonable adjustments made to ensure their health care needs are met.

The provider must make sure that people in their care are protected from both direct and indirect discrimination. CQC regulation 10: dignity and respect is clear that the provider must have due regard to any protected characteristics under the Equality Act 2010.

3. Signs of a closed culture

Inherent risk factors and warning signs

The likelihood that a service might develop a ‘closed culture' is higher if an inherent risk factor is present. Certain features of services will increase the potential for inherent risks. For example:

• services where people are unable to leave of their own accord
• live-in services such as shared lives, supported living services
• any service where one-to-one care is provided
• a provider changing the type of service it offers in response to market or other influences.

We will closely monitor services that we find have inherent risk factors.

We will also look for warning signs that suggest to us a closed culture is developing or has already developed in a service. Where we find these are present, we will take action.

Indicators of closed cultures

Below are indicators that a closed culture may exist, including examples of inherent risk factors and warning signs.

Indicator: People may experience poor care, including unlawful restrictions

Inherent risk factors

• People in a service are highly dependent on staff for their basic needs.
• People in a service are less able to speak up for themselves without good support, for example, in learning disability or children's services or care homes for people with dementia.
• Restrictive practices are used in a service.
• People remain in a service such as a mental health unit for months or years.

Warning signs

• Staff not understanding or speaking warmly about the people they are caring for.
• Staff belittling, excluding or taunting people.
• Care plans not being individualised or reflecting the person's voice.
• A lack of reasonable adjustments for disabled people.
• Poor or absent communication plans for people who have communication needs and or communication plans not being followed.
• Potentially punitive approach to care.
• Restrictions, including restraint, long-term segregation and prolonged seclusion, being imposed on people without an assessment of need, legal authority/legitimate aim or that have been imposed legitimately but are not subject to review and or do not ease over time.
• Blanket restrictions are in place and are not necessarily the least restrictive option.
• People being asked to go to their rooms or another area and prevented from leaving.
• The way premises are being used leads to increased restriction or lack of choice for people. For example, in mental health services, seclusion facilities are being used for long-term segregation without any adaptations to meet the needs of the person.
• Poor application or understanding of the Mental Capacity Act (MCA) and Mental Health Act (MHA), including not following the MCA, DoLS and MHA Codes of Practice.
• Concerns about medicine management including inappropriate use of medicines to restrain or control behaviour.
• People are not safeguarded against discrimination, harm and abuse. For example, specific concerns raised in relation to this or a high or increasing number of safeguarding incidents, complaints, poor feedback through surveys, NHS choices or other notifications.
• In inpatient mental health units, no or poor information about rights provided to people and their families when they first arrive in hospital as well as at regular interval during their stay in hospital.

The Equality and Human Rights Committee, in partnership with Rethink mental illness and others, have produced a guide called Your rights when detained under the Mental Health Act in England. Aimed at people detained in mental health units, their families, staff and advocates, the guide includes information on guide includes information about being detained in hospital, staying in hospital, leaving hospital and complaints.

Indicator: Weak leadership and management

Inherent risk factors

• The service sometimes runs without a manager or leader. Reasons for this include frequent changes in management and management responsibility for more than one site.
• The workforce comprises members of staff who are either related or friends, causing ‘cliques' to form.
• There is a lack of openness and transparency between managers, staff, people using the service and external professionals and organisations.
• Managers do not lead by example and governance is poor.

Warning signs

• Staff are not supported or encouraged to raise concerns and or staff are actively discouraged and are afraid to 'speak out'. (This may be due to ineffective whistleblowing policies, or a lack of support and guidance for staff.)
• There are differing views between the multidisciplinary team or managers and care staff about how people are being supported.
• Manager failing to monitor, and address issues raised by staff, people using the service, relatives and visitors to the service. Allegations of cover ups.
• Manager failing to engage and respond to recommendations of external agencies and professionals.
• Notifications to CQC are poorly completed, lack detail and concerns exist about tone of language.
• There are concerns about the condition and suitability of the physical environment that people are living in, which are not being adequately addressed in a timely way. In mental health hospitals, this may include not meeting the MHA Code of Practice.
• Allegations of staff bullying.
• Staff work excessively long hours or overtime.
• Shift patterns within the service mean that the same people are always working together.
• A failure to respond to any negative impact of a pandemic or incident such as COVID-19.

Indicator: Poor skills, training and supervision of staff providing care

Inherent risk factors

• There is a high turnover of staff.
• There are consistent staff shortages.
• There is a lack of suitable induction, training, monitoring and supervision of staff.

Warning signs

• A lack of suitable recruitment and induction.
• A high use of poorly inducted agency staff or locums who do not know people's needs.
• A failure to provide regular, good quality staff supervision and time for debriefs and reflective practice. There may also be a lack of monitoring and challenge to poor practice.
• Staff are not being given training that enables them to meet the needs of, and or effectively safeguard people using the service. For example, a lack of training in autism or the care of people with a learning disability or dementia.

Indicator: Lack of external oversight

Inherent risk factors

• The service is in an isolated location resulting in people using the service having limited access to community services and facilities and less opportunities for friends and family to visit.
• The provider is operating at scale and/or nationwide with regional managers covering large areas.

Warning signs

• There is a lack of monitoring by outside agencies.
• There is limited interaction with outside agencies due to failings on the part of the service to submit mandatory information such as notifications or safeguarding referrals.
• There are few visitors and a lack of initiatives to support regular contact with loved ones either in person or remotely.
• The service does not respond to CQC, commissioners or other external requests for information in a timely way.
• Families do not have a good working relationship with the provider and or are not aware of how their loved one is being cared for

4. How we identify a closed culture

"Families are often 'cut out' of conversations about their family members care, this also extends to a general defensiveness from services on any questioning. A defensive culture prevents a learning culture so should be something CQC look for."

Registration

Applications from existing providers

When existing providers apply to renew or change their registration details, we will assess all applicants for risks relating to closed cultures. This includes assessing if the current model of care is consistent with relevant guidance, such as Right Support, Right Care, Right Culture. We will seek assurance that the provider:

• protects people from abuse and uphold their human rights, including involving people in their care, and providing them with dignity, equality, safeguarding and procedural safeguards on human rights. This includes, for example, the Mental Capacity Act 2005 (MCA) and Deprivation of Liberty Safeguards 2009 (DoLS) (see registration assessment frameworks)
• promotes an open culture, where people who use services, staff and people visiting the service (relatives, friends, professionals) are involved in developing the service, feel safe to speak up about concerns, and meet the duties relating to the Duty of Candour
• have a positive record of compliance in this and or other locations
• manage change effectively, including ensuring the service has the right leadership in place
• have a workforce with the right skills and training, including specialist training
• can respond to the changing needs of people who use services; for example, increasing staffing levels if people's support needs change
• comply with or have made a declaration relating to non-compliance with the regulations. If non-compliant, does the declaration relate to inherent risk or warning sign, for example management or staffing
• can provide evidence of internal governance systems and external, independent oversight of the service.

Applications from new providers

For all applications from new providers we will seek assurance that the provider will:

• protect people from abuse and uphold their human rights; including involving people in their care, and providing them with dignity, equality, safeguarding and procedural safeguards on human rights. This includes, for example, the MCA and DoLS (see registration assessment frameworks)
• promote an open culture, where people using the service, staff and people visiting the service (relatives, friends, professionals) are involved in service development, feel safe to speak up about concerns and meet their duties relating to the Duty of Candour
• manage change effectively, including putting the right leadership in place
• recruit a workforce with the right skills and training, including specialist training
• respond to the changing needs of people using their service; for example, increasing staffing levels if people's support needs change
• ensure they have internal governance systems and external, independent oversight of the service.

For all providers (new and existing), where our assessments and intelligence suggest that abuse, harmful behaviour or human rights breaches are likely and will breach our regulations, we will not register the service. We will also refuse to register a service if the proposed model of care is not consistent with relevant guidance, such as Right Support, Right Care, Right Culture.

Intelligence-led monitoring

Once registered with us, we will monitor for signs that the service is a risk of developing, or may be developing, a closed culture. We will:

• consider intelligence in the round. We will look at the tone and content of notifications and any other contact from provider. Together with other information received, this may trigger enquiries during an inspection.
• give equal weighting to open criticism of the organisation's culture and inferences of a poor culture in whistleblowing reports or complaints. This may include, for example, information about a lack of variety of good quality meals or snacks because there is not enough money budgeted for this.
• look for patterns in the themes arising in notifications, whistleblowing, complaints and in the way the service responds.
• assess whether responses to notifications are defensive, and if they seek to place blame elsewhere and or showing an unwillingness to learn from an event. We will consider if they suggest that senior staff are aware of, but unwilling to respond effectively to, potential signs of a closed culture.
• look for evidence of conflicting information from different sources, for example, if assault by staff is being described as self-harm.
• look for evidence that services have failed to notify us, or not notified us in a timely way of an event that we become aware of through a different source.
• check if notifications are poorly completed and whether the language used raise concerns.

Inspection activity

Before we inspect a service

We will take the following steps before inspection.

• Review the intelligence we hold on the service, focusing especially on areas where relatives, friends or advocates have raised concerns.
• Prioritise a review of the care received by people who:

• have limited or no verbal communication
• have limited cognition
• have complex needs
• express distress in ways that staff find challenging
• are subject to restrictive practice
• are in long-term segregation and/or deprived of their liberty through e.g. a Deprivation of Liberty Safeguard authorisation, or detained through the Mental Health Act
• require 1:1 support
• are placed in a setting a different part of the country.

• Gather as much up-to-date feedback, both from within CQC and externally from relevant stakeholders, including advocates and local commissioners.
• Tailor our inspection team to ensure that we have the right level of expertise and support to inspect the service. This includes:

• using specialist advisors and Experts by Experience where appropriate.
• using communication aids if the people using the service have specific communication needs.
• for inspections of services for people with a learning disability and autistic people, making sure that members of the inspection team have knowledge of communication systems such as Makaton or Picture Exchange System (PECs).
• for inspections of older people's services making sure that members of the inspection team have knowledge and experience of communicating with people who have dementia.
• arranging an interpreter if there are people using the service who are not fluent in English.
• arranging specialist support from a member of our medicines optimisation team where medicines are known or thought to be a risk.
• for inspections of adult social care services and mental health services, we will consider carrying out a Short Observational Framework for Inspection (SOFI).

• Request contact details for relatives, advocates, staff and visiting professionals involved in the care of the person or people we are concerned about.
• Where appropriate and justified, we may ask for individuals' care and service records, to be sent to us securely.

On an inspection visit

To ensure that we are able to get the full picture of people's experiences we will take the following steps.

• Talk to and observe as many people and all other stakeholders as possible to gain a good understanding of the service and people's experiences of care.
• Speak to people, including staff, people using services, families and advocates etc, informally where possible. We will make sure that we speak with people where they feel most at ease and comfortable.
• If people (including staff) are busy or uneasy talking to us, we may:

• offer to speak with them outside of the inspection – virtually or by telephone call.
• ask to speak to them in an area of the service where they will not be seen.
• encourage them to call inspectors off duty at a time to suit them
• consider speaking to a group of staff remotely.

• Review CCTV (if and where available). This will be on a case-by-case basis, considering whether it is necessary and justified.
• If required, we may carry out an unannounced inspection and or inspect out of hours. If returning to complete an inspection, we may visit at different shift times in order to speak to as many different staff as possible.

5. Action we will take where we find concerns

Where we find evidence of harmful practice:

• We will act promptly to keep people safe – by taking safeguarding action, this may include intervention with the provider and/or commissioning body for the service. We will also consider whether the police need to be involved.
• Where we have evidence of one or more people receiving harmful care, this will lead to a breach or breaches of our regulations.
• When assessing the impact of harmful practice on the person or people, we will look at:

• the nature, frequency and duration of the harmful practice – including psychological, physical, emotional, and financial harm.
• the characteristics of the person or people affected. For example, if they are non-verbal, partially sighted or deaf. We will assess whether there is evidence of discrimination or victimisation, and how the harmful practice is affecting individuals.
• the extent of the harmful practice. We will look at how many people have been affected or are at risk of being affected.

Where there is evidence that a person or people are at risk of harmful practice:

• We will talk to the provider about our concerns and explain that there is an existing or developing closed culture, which is a risk to people's welfare.
• We will set actions for the provider to meet to address the concerns we have. These will need to be within a specified and short timeframe.
• We will consider the level of risk posed to people and if any of our regulations are being breached. To assess this risk, we will consider:

• the characteristics of the person or people affected. For example, if they are non-verbal, partially sighted or deaf. We will assess whether there is evidence of discrimination or victimisation, and how the harmful practice is affecting individuals.

• the specific nature and range of our concerns, including the scale and severity of the potential impact on people using the service.

Where there is no clear evidence of a closed culture or risk to people, but we still have concerns:

• We will continue to monitor the service for signs of a closed culture, including speaking with external stakeholders about our concerns. We will thoroughly explore new enquiries and intelligence with the service manager or leader and regularly risk assess services to determine whether future inspection activity should be brought forward.

Key regulations:

• Regulation 9: Care or treatment must be personalised specifically for them. This includes collaborative care planning with people who are given care and treatment choices. Care plans meet protected characteristics, preferences, physical, emotional and social needs.
• Regulation 10: People must be treated with dignity and respect. This includes the right to privacy, independence and autonomy, protected characteristics.
• Regulation 11: Providers must obtain lawful consent from people before care or treatment is given and ensure people have necessary knowledge and understanding of care and treatment, they are asking consent for. This includes explaining risks and alternatives, proper use of Mental Capacity Act.
• Regulation 12: Care and treatment must be provided in a safe way for service users. This includes patient risk assessments, mitigating risk, staff having necessary qualifications and skills, safe premises and equipment, proper and medicine management
• Regulation 13: Service users must be safeguarded from abuse or improper treatment while receiving care and treatment. This includes neglect, degrading treatment, unnecessary or disproportionate restraint, deprivation of liberty, financial impropriety and abuse
• Regulation 15: Premises and equipment must be clean, secure, suitable for the purpose for which it is being used, properly used, properly maintained and appropriately located. This includes assuring that the premises are suitable for the service users who are using the premises.
• Regulation 17: Systems and processes must be in place to ensure all statutory Regulations are met. This includes recording and documenting abuse, restraint, specific incidents, ensuring CCTV is used correctly and monitoring its use, monitoring the use of restraint, effectively implementing systems, processes and policies to ensure good care provision.
• Regulation 18: There must be sufficient numbers of suitably qualified, competent and skilled members of staff deployed. This covers recruitment, supervision, training and personal learning.
• Regulation 18 (CQC regs): Providers must notify us of all incidents affecting health, safety and welfare of people. This includes, but is not limited to, abuse, allegations of abuse, ill-treatment, serious injuries and any matter reported to the police.