Sheila Gaskin

AGGCC
CSSIW

Arclygioeth Gefal a Gwesenasthay Cymdeithasol Cymns-
Care and Social Services Inspectorate Wales

Andrew Barkley

Senior Coroner for South Wales Central Area

Rock Grounds Ein cyt / Our ref:
First Floor
Aberdare
CF44 7AE Dyddiad / Date: September 2017

Eich cyf/ Your ref: ARB/SLR/9713.

Dear Mr Barkley
RE: Touching upon the death of the late Sheila Margaret GASKIN

| am writing in response to your letter dated 27 July 2017 in which you ask CSSIW to
consider putting in place a blanket prohibition on care workers assisting service users to
smoke.

CSSIW regulates and inspects on behalf of Welsh Ministers. We do not have the power to
make law nor issue formal statutory guidance. Therefore, we are unable to impose such a
ban. We have discussed your recommendation with a number of key agencies including
Welsh Government policy officials, Social Care Wales which regulates the work force, the
UKHCA and Care Forum Wales the two leading provider associations as well as Heath
and Safety bodies and the Fire Service.

Whilst people completely understand the reasons for your recommendation there is no

support for the proposal to place a blanket prohibition on care workers assisting service
users to smoke. It was considered such a ban would compromise choice and control of
people who use services. What our discussions did reveal was a deep concern for care
staff and the risks of passive smoking.

We also spoke to the care provider and reviewed the records in relation to the inquest you
held and noted that whilst fire risks had been recorded the issue of assisting with smoking
had not been identified nor agreed and the care worker was acting without her employer's
agreement or knowledge.

AGGCC cSsiw

Llywodraeth Cymru Welsh Goverment

Parc Busnes Rhydycar c 03000628815 Rhydycar Business Park

Merthyr Tudful Merthyr Tydfil

CF48 1UZ CF48 1UZ
&  cssiw@.gov.wales

www.aggcc. org.uk www.cssiw.org.uk

Rydym yn croesawu derbyn goheblaeth yn Gymraeg Byddwn yn ateb gohebiaeth a dderbynnir yn Gymraeg yn Gymraeg ac ni fdd

gohebu yn Gymraeg yn arwain at oedi. REC E IVE D

We welcome receiving correspondence in Welsh. Any correspondence received in Welsh will be answered in Welsh and corresponding
in Welsh will not lead to a delay in responding. os 6 SEP 2017

We do want to respond positively to your recommendation and have agreed to issue
general guidance to care providers on the following lines.

“Risks associated with smoking: It is important that both the health risks and fire risks
associated with smoking to those receiving care and support and those providing it are
assessed and mitigated. In particular we would not ordinarily expect care workers to assist
people to smoke because of the potential fire and health risks. Where this does happen it
must for a good reason and be part of an agreed plan and in the knowledge of those
managing the service. It must be included within the care plan and risk assessment and
wherever possible alternatives should be explored to eliminate or reduce the risks, for
example the use of e cigarettes. The advice of the fire service should always be sought.

The risks associated with smoking must be addressed in the service's policies and
procedures and expectations of care workers in relation to smoking and assisting others
made clear”

| hope this goes some way to addressing the concerns arising from the inquest into the
late Sheila Margaret Gaskin.

Yours sincerely
t

Gillian Baranski
Chief Inspector
CSSIW — Care and Social Services Inspectorate Wales

CareQuality .
C ommission Baas Information

Gallowgate
Newcastle upon Tyne
NE1 4PA

Telephone: 03000 616161
Mr A R Barkley Fax: 03000 616171

HM Senior Coroner
Rock Grounds

First Floor
Aberdare

CF44 7AE

04 October 2017

Our References: MRR1-4162633255 and MRR1-4225051596
Your reference: ALB/SLR/9713

Dear HM Senior Coroner

Prevention of future death report following inquest into the death of Sheila
Margaret Gaskin

Thank you for sending CQC a copy of the prevention of future death report
issued following the death of Sheila Margaret Gaskin.

We can confirm that we did not receive any statutory notification regarding Ms
Gaskin’s death but we would not have expected to do so. This is because Ms
Gaskin was being provided with care from Affinity Homecare Newtown, a service
which is not regulated by CQC, rather falling under the jurisdiction of the Care
and Social Services Inspectorate Wales (CSSIW). There would, therefore, have
been no requirement placed on the service provider Affinity Homecare Newtown
to inform CQC in this instance.

Currently registered with CQC are two limited companies, Affinity Homecare
(Cheshire) Limited and Affinity Homecare Shrewsbury Limited. Originally these
two companies had the same directors but in September 2016 they separated
and Affinity Homecare Shrewsbury Limited is no longer affiliated in any way to
the Affinity Homecare group. Therefore the current group consists of Affinity
Homecare Wales, with offices in Aberystwyth and Newtown, and Affinity
Homecare (Cheshire) Limited with an office in Wilmslow. The nominated
individual for all these offices i Affinity Homecare Shrewsbury
Limited has an office at Oxon Business Park in Shrewsbury and the nominated
individual is

In response to your matters of concern:

7. The evidence revealed that there was an identified risk in Ms Gaskin's
care plan of her smoking in bed. The fire service had been involved in risk
assessing the situation and had provided flame retardant bedding and
linen. Despite this obvious risk having been identified and implemented
into the care plan, there was nothing prohibiting carers assisting Ms
Gaskin to smoke in bed which, the evidence revealed, was a regular
occurrence.

The registered person (the service provider and/or registered manager) is
responsible for ensuring that care and treatment is provided in a safe way for
service users (Regulation 12 (1) of the Health and Social Care Act 2008
(Regulated Activities) Regulations 2014). As part of this regulation the registered
person is required to assess the risks to the health and safety of service users
receiving care or treatment and do all that is reasonably practicable to mitigate
any such risks.

Another key requirement relating to persons carrying on an activity regulated by
CQC is that care and treatment of service users must only be provided with the
consent of service user (or other person as relevant) (Regulation 11 of the 2014
Regulations).This regulation places a responsibility upon the service provider to
consider consent where people lack capacity, in accordance with the Mental
Capacity Act 2005.

As part of CQC’s inspection methodology, inspectors assess risk and look at key
lines of enquiry to determine if a provider is compliant with these regulations.
When planning the inspection the inspector takes account of any information that
has been received from the provider and from other stakeholders, for example
members of the public and the local authority. This information might include
notifications (that the registered provider has a statutory duty to submit) in
respect of specific events occurring at the service, for example incidents where
the police have been involved, deaths that have occurred whilst staff have been
delivering the regulated activity of personal care or changes to the registration of
the service. Information we might receive from other stakeholders can include
complaints, or issues of concern, or indeed positive feedback about how the
service is meeting people’s needs. Inspectors will also contact commissioners of
the service to ascertain their views prior to the inspection. CQC would also
accept as a matter of course any information from the Fire Service and would
assess this information against other information we hold. This might lead to
CQC inspecting a service to assess whether persons using the service are being
kept safe.

In instances where care is being provided to service users in their own homes,
one of the methods CQC inspectors use to determine whether the provider is
complying with the regulations is ‘pathway tracking’. This involves the inspector
taking a random sample of people, with different care needs, who each receive

the regulated activity of “personal care”. This generally takes place during the
CQC inspectors’ visit to the office from where the care is delivered and managed.

Pathway tracking is a process by which inspectors review how individuals’ care
and support needs have been assessed, planned for, delivered and reviewed.
This involves inspection of people’s care records and corroboration of the care
they receive by means of conversations with the people receiving the service,
family members and the staff.

In line with Inspection methodology how many people the inspector or inspection
team need to make contact with is dependent on the size of the service.
Inspectors are not able to pathway track all the people using the service. (As with
all public bodies) we have limited resources. We seek to maximise these in terms
of our ability to obtain service user feedback, by sending questionnaires to
service users prior to the inspection and speaking with a number of service users
or their relatives by phone. We are also able to visit a number of people using the
service but given that they are living in their own homes and not all together in
one place, as is the case when we inspect care homes, we do not have the
resources to visit everybody. In addition the inspector may only pathway track
certain key elements of a person's care, although this would generally involve the
people with more complex needs. Where concerns are observed by inspectors,
or where information is available to inspectors to indicate that care plans are not
being adhered to then CQC can take enforcement action against the service
provider.

As a starting point therefore, CQC relies upon the service provider to ensure that
risks are identified and mitigated as far as is reasonably practicable in line with
the regulatory requirements placed on them. Inspectors will assess the systems
that providers have in place, to oversee the risk management process which
should take into account the varied and more complex/high risks involved in
providing care, such as how people with a high degree of immobility can be
moved safely, or how medicines can be managed safely where people require
them to be administered at very specific times. We would expect that the issue of
a service user smoking in bed would be considered as a high risk activity and we
would expect the service provider to mitigate the obvious risks and to record the
action taken. Our inspectors will consider whether the registered person has
balanced the requirement to mitigate risk with the requirement to enable people
with capacity to make decisions.

Where a person is assessed as lacking capacity this in many ways is more
straight forward as it may be determined after following the best interest process
and having mind to the Mental Capacity Act that no smoking products should be
kept at a service user's house and they may only be supported to smoke under
the supervision of staff when they are present.

However, where someone is assessed as having capacity we would seek to
satisfy ourselves that a thorough risk assessment has taken place, and that if the
service user is choosing to make what may be considered an unwise decision
staff have clear guidance on what they can and cannot do. We would be unable
to issue blanket guidance around this because each situation would have to be
determined on a case by case basis. For example, the provider may need to
balance the risks of facilitating the service user to smoke in bed, with the risk that
should staff not do that, the service user may attempt to get out of bed without
support and suffer a fall.

2. Management of the care provided accepted that there was no effective
oversight by them on a day to day basis and they were unaware that
carers were assisting the deceased in this way. They agreed that what
was required was a blanket prohibition on care workers assisting the
service user in smoking which would have given a greater degree of
clarity.

Under Regulation 17 of the Health and Social Care Act 2008 (Regulated
Activities) Regulations 2014 the registered person has a legal duty to ensure that
systems and processes are established and operated effectively to ensure
compliance with these requirements.

In complying with this regulation it is incumbent on the registered person to
develop systems or processes that enable them to assess, monitor and improve
the safety of services provided to people. Furthermore they are required to
develop a system to assess, monitor and mitigate the risks relating to the health,
safety and welfare of service users and others who may be at risk.

Part of our current methodology includes inspectors making an assessment of
the provider's governance systems and how these are used to ensure that risks
are managed and mitigated and the quality of assessment is under appropriate
scrutiny by the registered person. Governance systems should include “spot
checks” by the registered manager or delegated person to ensure that staff in the
field are working in accordance with individuals’ care plans. This also enables the
registered person to assess specific risks and offer guidance and support to their
staff.

As part of the inspection process we check that these systems are in place and
that staff receive supervision, an opportunity for them to discuss issues and
concerns relating to practice. Inspectors will also review records of any accidents
and incidents, to form a view regarding how learning from these is cascaded
across an organisation. All these area form part of the day to day work and
oversight of the registered person and we would expect that if operated
effectively these would be sufficient to enable the registered person to identify
key risks to people and work with staff to mitigate them appropriately.

With regard to the suggestion of a blanket prohibition on care workers assisting
service users smoking, we are concerned that this approach is not consistent
with the person-centred approach to care planning that we would expect to see.
A blanket ban on this activity could inadvertently lead to a person's care and
support needs not being met in a way that promotes their needs and preferences;
we would prefer that prohibition is risk assessed as appropriate on a case-by-
case basis.

However, that does not remove the requirement placed on providers and
registered managers to ensure that they are delivering care in a safe way and
doing all that is practicable to mitigate any risks. CQC will continue to review
through its inspection processes the systems and processes being operated by
those services it regulates and will challenge and if appropriate take enforcement
action against the registered person where it finds that care is being provided in
an unsafe way and is being provided contrary to the care plan.

Yours sincerely

LAF

Head of Inspection