Unfair Terms of Contract

7/27/2019 Unfair Terms of Contract

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Unfair Terms and Conditions of Contract in Care Home Management: A

Manifesto for Disciplined and Structured Improvement and Innovation

using Models of Excellence for Care Home Management.

Dr. Phil Barden and Alec Fraher FMIoCP MIHM


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Introduction

This paper has a simple objective, to suggest that in the absence of

legislation to protect the rights of service recipients the current

dismantling of welfare provision will continue to fail, everybody. Here we

started by asking how to meet the requirements of the Unfair Terms and

Conditions of Contract legislation and suggest the adoption of models

of excellence will help. We suggest this approach could provide

substantial help in developing a framework for 21st century care home

management.

We do not see any merit in citing the cases of care home failures that

seem to dominate discussion of the industry. Neither have we racked

over the dozens of articles and reports which have provided the industry

with another example of that useful rule of thumb that industrial insight

is inversely related to the number of articles cited to reinforce it. Instead

we suggest that failure means a failure in the public service ethos to

ensure that the fundamental terms of contractual agreement are fatally

flawed. We suggest that models of excellence will enable care home

management to look to the future and recognise that anything other

than service excellence will increasingly be seen as unacceptable.

Simply put our view is that the rigorous attention to a public service

ethos, care and performance management standards that are in place in

most modern industries are required in the care home industry, and that

we must ratchet up our expectations of what can be delivered to those

displayed by the worlds most successful industries. Care homes are

too important in developing the social value of economic growth to be

allowed management standards that are, sometimes, second best.

We will suggest that the key driver of care home management lies in

establishing a visible public service management ethos, than a mere

management system as such, that will inform the success or failure of

an organisation along the major dimensions of organisational care

performance. We will further suggest that in order to achieve the

required levels of success for these measures, care home management


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must seriously examine its skills in process design and improvement.

Our final point on this structural issue is that real progress cannot be

made on process until senior care home management recognise that

process improvement requires a detailed understanding of front line

activity. Models of excellence provide a mechanism for tying together

the experience and activity of front line staff with the strategic

aspirations of senior management, and until such linkage is made

routine, there will continue to be the kind of failures that should, rightly,

make the care home industry feel ashamed.

Care home staff and management continue to achieve great things for

residents in the face of increased pressures from purchasers,

regulators, and residents themselves. It would be condescending,

however, to pretend that these achievements are sufficient to satisfy

what is becoming an increasingly demanding user base. There is an

urgent need to re-skill staff and management in the industry from top to

bottom. Models of Excellence provide a framework for 21st century

management. It is by no means the final word. Increasingly, just as with

healthcare, a range of improvement methodologies will become integral

to the way in which care homes deliver their services. If care is always

central, we will all have to recognise that excellent management does

not conflict with care, it provides a mechanism for improving and

amplifying it.


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1. The Transition to Excellence : This paper is intended to provoke

discussion on one of the key components of care provision in the

UK care industry the Care Home. It suggests that the Care Home

industry is in need of radical managerial change if those who

make use of its services are to receive value for their money.

Further, it will suggest that value in the eyes of service users is

changing. Increasingly, service users expect value as the

minimum their care home should provide, and that the care

homes that will survive and thrive will recognise that the path they

must take is from value to excellence. This paper will look at the

impact of implementing models of excellence in care homes the

impact on residents, managers, and front line staff. It is vital that

the management of the care home industry keeps pace with the

best of managerial developments in other industries. If world-

class management is required as the entry price for the

manufacturing of mobile phones, the development of new

financial products, and motor cars, surely we should expect no

less for the care industries. If detailed, robust, and tightly

structured activity management is a sine qua non of the hotel

industry or the airline industry, why should we expect anything

other than that in the care industries. If innovation is an integral

component of retail, of financial services, of computing, of all

those industries that see success in terms of continuous

reinvention to meet the continuously changing demands of their

customers, why is it that the care industries continue to focus on

regulating the past rather than re-conceptualising the future. Why

is it that when so many industries have recognised that one of the

keys to developing industry excellence is not to inspect defects

out, but to create systems in which defects cannot arise that in

the care industries, investigations of systemic failure has become

an industry in itself. When we look at the aspirations of so many

industries to reach six sigma levels of performance, why is it that


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we find it almost unexceptional to find below par performance in

so many areas of the care industry.

2. A central contention of this paper is that if the care home industry

is to evolve in such a way as to ensure that care home residents,

the purchasers of care home services, care home staff, and the

regulators of the care home industry, are to be provided with a

service which reflects the expectations of 21st industry excellence,

there must be a move to structured excellence modelling. Models

that rigorously analyse the key measures of performance for

organisational success, and that determine the extent to which

care homes are meeting and exceeding targets in these areas.

Models that measure the value added of staff activities and ensure

that continuous improvement is an integral part of all staff

activities. Models that assess regularly the extent to which

residents views are taken into account and acted on. Models that

enable residents and purchasers to assess the introduction of

innovations reflecting best practice. It should be possible for any

care home resident, service purchaser, staff member, or regulator

to look at the measures on the care home excellence model and

be assured that the standards required for excellence are being

achieved. Note that these are not minimum standards these are

standards of excellence. It is vital that the care home industry

recognises that increasingly the only standards that will

guarantee a sustainable future are those of excellence

3 Scale : It is worthwhile reminding ourselves of the size of the care

home industry The Office of Fair Trading Report, Care Homes for

Older People in the UK A market Study (OFT 780), May 2005, we

get some idea, In 2004, an estimated 410000 older people lived in

residential and nursing homes across the UK. There are about

15,700 private, voluntary, and Local Authority care homes in the

UK, providing care at an estimated annual value of more than 8

billion per annum (OFT 780, 1.2, p.1). There are few UK industries

of this size, and even fewer growing at the rate of the care

industry. Of course, industry scale of itself, tells us little about


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how it should be managed, nonetheless it is worth reminding

ourselves of a fundamental rule of industry management

increased scale requires improved structure.

4 What are Models of Excellence? : As with much management

theory, there is a danger of falling into a buzz word boot camp in

trying to articulate a technique which attempts to bring a cluster

of management tools to front line management practice. In order

to steer a course between the Scylla of vacuity, and the

Charybidis of pretension, we propose to provide a simplified

approach to characterising models of excellence, hoping that if

such a straightforward approach does not resonate with the

reader, a more sophisticated approach is likely to have even less

success. Models of excellence are mechanisms for bringing

together those dimensions of organisational activity along which

successful performance must be maintained if the organisation as

a whole is to succeed. So, for example, there is a body of opinion

that says that for an organisation to sustain success, it must

succeed along the dimensions of finance, operational efficiency,

stakeholder satisfaction, and innovation. Failure in any of these

dimensions, it is said, will undermine the organisation as a whole

and dilute success achieved in the other dimensions. So, no

matter how efficient a care home might be, no matter how well it

utilises best practice and innovation, no matter how much

residents appreciate the service provided, if you cannot manage

the home financially, it will fail. Very crudely, the above

characterises the Balanced Scorecard approach to excellence.

Excellence is the structured approach to achieving objectives in

each of the major dimensions of organisational success.

Of course the Balanced Scorecard is not the only model of

excellence. The European Foundation for Quality Management,

has had enormous success in both the public and private sectors

by articulating the linkages required between organisational

resources and objectives if those objectives are to be achieved.

The analysis of the organisational enablers required to achieve


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desired results provides an organisation with a structured route

map for achieving excellence.

5 Why Use Models of Excellence? : So are models of excellence the

answer to the question of how best to manage care homes?

Indeed, are we sure that this is the question? Perhaps, the real

impact of models of excellence is not simply as a guide to

improved management, but as a trigger for rethinking what

successful management, and consequently, excellent

organisations look like. The question is How do we ensure that

we manage care homes in such a way that the stakeholders to

include regulators, payers, and residents experience care

homes as excellent environments? The answer is that we can no

longer do this by ad hoc steps to improve. We must impose a

framework for excellence on our care homes such that we

eliminate opportunities for failure. We must manage in such a way

that we build excellence in all the dimensions of organisational

success into our care home systems the days of inspecting

inadequacy out of systems will be removed by ensuring that our

systems are built in accordance with structured models of

excellence.

6 Starting the Journey : We have tried to suggest that models of

excellence for care homes will enable structured management

systems to be developed along all the major dimensions of

organisational success. However, at this point, we have still

maintained a fairly abstract level of discussion. we would now like

to move towards the more programmatic part of this paper using

a balanced scorecard approach as the preferred excellence

model. First, we will look at the findings of the OFT report on Care

Homes for Older People in the UK [OFT780] and examine how

their concerns would have been caught by a detailed scorecard,

we will then look at some of the implementation issues for models

of excellence and the extent to which they can be managed. we

will finally describe a scorecard structure that we think will

provide a framework for care home excellence. This represents


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the manifesto element of the paper. Our view is that without a

structured model of excellence to ensure that the various

components of care home management are mutually reinforcing,

cover all the dimensions of organisational success and

concurrently monitored, the standards we will increasingly expect

of care homes will not be met.

7 The Role of Excellence Models in Evaluation : The OFT study

mentioned earlier is a useful and competent piece of work. We do

not see it as a major contribution to the development of care

home management but rather a useful indicator of how the market

for care homes has evolved. The concerns stated in the OFT

report are relatively straightforward, a) lack of information for

older people about moving into a home, b) authority obligations

about what advice and support Authorities should be providing

to their older people and their representatives, c) price

transparency concerning fees and services offered, d) potentially

unfair contracts, and e) access to making complaints [op. cit. p.3].

What do these concerns tell us about the management and

performance of care homes? How can a care home discharge its

duties if it does not provide the required information for older

people moving in? This is surely an integral component of

ensuring stakeholder satisfaction. How can a care home manage

efficiently if it is not aware of the obligations of the authority to

the care home residents? Surely, without knowledge of third party

obligations, a care home cannot efficiently manage its resources.

How can a care home purport to be managing its finances

adequately if there is lack of transparency on prices, and on what

the purchaser gets for the price? If care homes do not provide

access to making complaints, then surely the stakeholder

satisfaction component of good management must be lacking.

Not to labour the point in any further detail, it does seem clear

that with a structured balanced scorecard used to determine the

day to day management of the dimensions of organisational

success, all the issues of concern in the OFT report would be


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integral components of how care homes manage their day to day

activity.

8 Implementing Excellence Models : The trouble with management

solutions lies in the difficulties we have in implementing them,

and models of excellence are no different from other potential

management solutions in this regard. If the scorecard is not

regarded as significant in day to day work, problems will arise

however good the scorecard architecture. If staff do not see the

scorecard as being an empowering improvement tool but rather a

controlling mechanism, then do not expect their support. If

purchasers of care home services do not see the scorecard as a

means of assessing the performance and value of care home

services, then do not expect the scorecard to be seen as a key

tool for negotiating prices, and if residents do not see the

scorecard as a means of allowing them to assess the extent to

which outcomes are meeting targets, then do not expect them to

see it an anything other than another bureaucratic management

tool.

9 The Evolving Role of Management : What is central to the

successful implementation of a model of excellence is recognition

that the role of management has radically changed in modern

times, and that alongside the change in management technique

there has been a change in the nature of management tools.

Organisational success requires an environment in which staff

can recognise how the changes they are asked to carry out have

an impact on their achieving their work objectives, an

environment in which purchasers can see transparently how

value is being delivered and continuously improved, and an

environment in which service users can see how the organisation

is not only providing the required outcomes, but also how their

concerns about service are being translated into improvements in

the service. This level of implementation cannot be achieved on

an ad hoc basis. It cannot be achieved by simply responding to

problems as they occur. It cannot be achieved by generic


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injunctions to think out of the box, or to improve the extent to

which care home users are informed about service options. It can

only be achieved by a rigorous, systemic, and structured

approach to identifying those key areas of organisational

performance, the targets for which must be met if organisational

excellence is to be achieved. A key component in developing the

scorecard is involving all stakeholders in its construction.

Residents are, of course, central to determining the measure set

for the excellence model. However, it is important to recognise

that the best models ensure that all stakeholders have a role in

establishing the excellence model. If an excellence model is not to

become simply a wish list, it is vital to ensure that the criteria and

measures of excellence are mutually reinforcing. E.g it might be

sensible for a hospital to look at minimising length of stay as an

indicator of improved performance, however it may be that as

length of stay reduces, so readmission rates go up and average

cost per patient day also goes up. The answer is to ensure that

not only should we be looking at reducing average length of stay,

but also reducing readmission rates, and maintaining or reducing

the cost per patient per day. Another central issue in building an

excellence model is ensuring that those measures we use to

assess performance improvement can be measured, whether

directly or by proxy. So, for example, it may be that care homes

regard treating their residents with dignity as central to providing

an excellent service. It may be that residents also value being

treated with dignity as key to having an excellent care home

experience. However how do we establish targets for this? How

do we ensure that the meaning of dignity remains the same as

the care home population both residents and staff changes.

Increasingly models of excellence try to use quantifiable proxies

for hard to quantify elements of excellence. So, the extent to

which care home residents are treated with dignity might be at

least partially assessed by the extent to which resident

complaints are addressed within a specified period. The key is


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that models of excellence endeavour to provide hard-edged and

quantifiable measures and targets leading to practical steps for

improvement where targets are not being met.

10 What might an excellence model for a care home look like?

Diagram 1

The above diagram begins to suggest, in a relatively abstract manner, the

directions and management methodology for developing the path to structured

excellence. The first step is to make a strategic commitment to excellence, but

what does thatmean? We would suggest that we need to commit to providing not

just a care home but a care home that will deliver excellence along all the criteria

which determine what counts as excellence for a care home. So, using the

following diagram as a guide ;


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Diagram 2

a) Process: Have we developed measures for process improvement? Do we have

a list of all the processes in the care home from cleaning rooms to negotiating

with potential residents and local authorities? What are out processes for

enabling residents to take meals? Do we know the processes that make up

running and managing a care home, and are we performing them efficiently,

effectively, and economically?

b) Financial: What measures do we have in place to ensure that we are financially

sound and cost effective? What measures are in place to ensure that our costs

and revenues are transparent to both purchasers and residents? how do we

ensure that we are providing value?

c) Customer/Stakeholder: What measures do we have in place to ensure that

issues raised by purchasers, regulators, and residents are continuously

assessed and acted on? What measures do we use to ensure that we have staff

who have the most appropriate qualifications and receive rewards

commensurate with the best in the industry?

d) Innovation: What measures do we have in place to benchmark our provision

against the best in the industry? How quickly do we change our processes to

ensure they comply with best practice? How quickly do we act to implement

new practices and procedures suggested by purchasers, regulators, staff, and

residents?

The measures are developed by discussion with all staff, purchasers, regulators,

and residents. Of course there is a need to structure the measurement system. The

first stage is to determine the measures that matter at the highest level perhaps

the term strategic is appropriate for these measures. It is improbable that there

will be more than 30 of these measures spread among the areas outlined in

diagram 2. The next stage is to analyse the processes which enable the targets for

each of the key measures to be achieved if they are working optimally, and finally

each of the key processes requires decomposition into the activities that make up

the processes. It is at this level the activity level of front line staff that

excellence is developed and sustained.Having devised the key measure set, the


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constituent processes, and the activities that make up the processes, the business

of establishing and ensuring continuing excellence is achieved through following

rigorously the steps 2- 8 in diagram 1.

Conclusion: Excellence in the provision of care homes and care home services isachievable and must be achieved. There are no excuses for anything less than

excellence. However, the standards required cannot be achieved by ad hoc

improvements, responses to failure, or a caring perspective. Excellence requires a

detailed strategic commitment to identifying the measures that matter across all

the dimensions of organisational success, and deploying a model of excellence

which puts in place the procedures which will guarantee hitting the targets for each

of those measures. Rigorous, detailed, disciplined, driven, outcome obsessed

these are some of the characteristics of an operational model of excellence.

Perhaps above all else a recognition that these procedures are not simply imposed

by care home - owners, they are the result of a partnership between purchasers,

staff, regulators, and residents. Excellence in care home provision as an integral

component of that provision is waiting to be achieved it can be achieved, the

management models are waiting to be deployed, the intent is there, all that is

missing is the recognition that there is no other way.

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Unfair Terms of Contract