What Regulation 9 actually says #
Regulation 9 of the Health and Social Care Act 2008 regulations covers person-centred care, and its wording does most of the work on this page. Three requirements carry the weight.
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Assess with the person
The provider must carry out, collaboratively with the relevant person, an assessment of the needs and preferences for care and treatment.
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Write a plan the staff can see
A clear care or treatment plan, including agreed goals, must be developed and made available to all the staff providing the care.
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Support them to decide
The person must be supported to make, or participate in making, decisions relating to their care to the maximum extent possible.
CQC's guidance adds that assessments should be reviewed regularly and whenever needed, and that plans should include an agreed review date.
Read that as a specification and the boundary draws itself. The words "collaboratively" and "participate in making" describe something that happens between people. They cannot be satisfied by a document that was produced quickly and shown to somebody afterwards.
Capacity makes the requirement stronger, not weaker #
The temptation runs the other way, which is why it is worth stating plainly. Where somebody cannot make a decision for themselves, the Mental Capacity Act 2005 framework applies, and the Code of Practice published by the Office of the Public Guardian on 22 July 2013 and last updated on 14 October 2020 sets out how. Professionals and paid workers acting for people who lack capacity have a legal duty to have regard to it.
A best interests decision is a structured judgement made by a named person who can be asked to account for it. The structure is the safeguard. Nothing that removes the named person from that process makes it safer, and a service that let an assessment be produced without one would have removed exactly the thing an inspector, a family or a coroner would later look for.
Where the law on automated decisions bites #
UK GDPR adds a restriction on top of the care regulations. Where a decision is based solely on automated processing and produces a legal or similarly significant effect on a person, it is restricted unless a narrow condition applies.
Where such processing happens, four things follow.
- People must be told it is happening
- They must be able to make representations
- They must be able to obtain human intervention
- They must be able to contest the decision
A decision about the care somebody receives at home, how often, from whom and with what support, is about as significant as decisions about a person get.
Care records are also special category data, so the underlying processing needs a lawful basis and an Article 9 condition before any of this is reached. The same line is drawn on visit notes and care records, and it does not move here.
What is actually left, which is more than people expect #
Almost everything that surrounds a plan is bookkeeping, and bookkeeping in a care office is both substantial and badly served.
43%
Rota scheduling
Florence, survey of 222 NHS and social care managers, 4 October 2023
30%
Documentation and record keeping
Florence, survey of 222 NHS and social care managers, 4 October 2023
Those were the two biggest consumers of managers' time in Florence's survey, published on 4 October 2023, with documentation second behind rota scheduling. It is supplier run research with a self selecting sample, so treat it as an indication rather than a measurement. The direction matches what services describe.
Candidates
- A plan whose agreed review date has passed. Decided by a date.
- A plan that has not reached the staff delivering the care. Decided by distribution records.
- Two versions of a plan in circulation. Decided by version numbers.
- A change noted in a visit record but never carried into the plan. Decided by comparing two records, and it goes to a person as a flag to check.
- A capacity or consent record that was never completed. Decided by a missing field.
- A risk assessment referenced by a plan that does not exist. Decided by a broken reference.
Not candidates
- What the plan should say. Decided by the person, their family and the assessment.
- Whether a change in need means a change in care. Professional judgement.
The candidates have something in common: not one of them requires reading what the plan says about a person. They are questions about whether a record exists, whether it is current and whether it reached the people who need it.
Regulation 17 requires providers to securely maintain accurate, complete and detailed records for each person using the service, and "complete" is a property you can check without interpreting a single sentence of care.
On drafting #
Services often ask whether a plan can at least be drafted and then edited. That question is less useful than it sounds, for two reasons worth naming.
The first is that a fluent draft exerts pressure: it is easier to approve well written text than to rewrite it, and the collaboration Regulation 9 asks for is the first casualty of that.
The second is that the record has to show how the decision was reached, not just what it concluded, and a document that reads well says nothing about whether anybody was consulted.
So this page does not tell you that drafting is forbidden, because that is your judgement and your registration.
What to look at first #
Count the plans currently past their agreed review date, then count how many of those have had any change at all since they were written.
A service with a long first list and a short second one has a noticing problem rather than a care problem, and noticing is the thing that CQC evidence gathering keeps rediscovering. The free tools will put hours against your own counts without asking you for anything.