‘The care sector crisis cannot be blamed on outsourcing – the issue lies with the standard of services and the enforcement of standards’, say researchers from the University of Eastern Finland

Care homes for older people struggle with at least drug therapy, basic health care, palliative care, hygiene, meaningful activities, patients’ self-determination, internal controls, treatment and service plans, and access to qualified staff. The problems are the same in both the private and the public sector.

This is a translation of a MustRead Academy article published originally in Finnish on 29 October 2021.

Virve-Maria Toivonen – Matti Muukkonen – Anna Mäki-Petäjä-Leinonen

Toivonen is a Professor of Welfare Law and Legislative Studies, Muukkonen a Senior Lecturer in Public Law and Mäki-Petäjä-Leinonen a Professor of Law and Ageing at UEF Law School.

The way in which older people are cared for in Finland is seriously lacking.

The scale of the issue was exposed in 2019 when numerous irregularities were discovered in several private-sector care homes. Inspections carried out by Regional State Administrative Agencies have since unearthed similar failings in public-sector care facilities. The problem therefore lies with the care of older people in general.

These findings inspired us to look closer into the care system itself. The focus of our study became the round-the-clock care of older people. This kind of care is currently mostly provided in what are known as ‘enhanced service housing units’.

We examined both the regulations governing the standard of care services for older people and the enforcement of standards as well as the decisions that Regional State Administrative Agencies have made in enforcement cases.

Standards are poorly defined and therefore difficult to enforce

What we found, most importantly, is that as well as constantly talking about the need to improve the standard of services, decision-makers also need to make sure that those standards are actually enforced. If they are not, all that remains are empty words.

The Constitution of Finland obligates the public authorities to ‘guarantee for everyone adequate social, health and medical services and promote the health of the population’. The phrase may sound hackneyed, but the message is vital to the public’s well-being.

Until the end of 2022, providing these vital services is still the responsibility of local governments. What happens next will be historical: with Finland’s entire health and social services system being overhauled, the provision of these services will become the responsibility of self-governing regional authorities.

At the moment, local governments are under a legal obligation to deliver at least the standard of service laid down in the Constitution. All residents must have equal access to vital services. Local governments also have an obligation to ensure an adequate standard of care for older people. The Local Government Act gives each local government the power to set the standard for its services independently.

The Act on Supporting the Functional Capacity of the Older Population and on Social and Health Services for Older Persons (‘Elderly Care Act’) identifies three benchmarks for a high standard of care: (1) a sufficient number of qualified staff, (2) competent management, and (3) functional facilities.

Do you think these sound unoriginal? Because we do.

And with such perfunctory criteria, is it even possible to measure the standard of services effectively? The short answer is ‘no’.

Qualitative standards cannot be measured without first defining what quality is and what it consists of and then agreeing on unambiguous quality indicators. Any regulation that lacks this foundation is likely to have little impact on the actual standard of services.

Without clear quality indicators, standards also cannot be effectively enforced despite the many undeniably detailed provisions on the division of enforcement responsibilities in Finnish laws.

Whose responsibility is it to enforce standards and how?

Enforcing standards is always primarily the responsibility of the service provider. Each health and social services unit must have its own internal controls for ensuring the standard, safety and appropriateness of its services.

The Social Welfare Act also obligates social services staff to report to their supervisor any threats to the proper care of customers that they notice themselves or that come to their attention otherwise. The supervisor then has a responsibility to notify the local head of social services, such as the municipal social welfare and health officer.

Ultimately, however, it is the authorities that have a legal obligation to ensure the standard of care and the enforcement of standards. The central government organisation with oversight of local social services in Finland is the Ministry of Social Affairs and Health, and enforcement is the responsibility of the National Supervisory Authority for Welfare and Health, the Parliamentary Ombudsman and the Chancellor of Justice.

At the regional level, the responsibility for enforcement lies with Regional State Administrative Agencies. Local governments also have a responsibility to coordinate and oversee both the care services that they provide themselves and any services that they have outsourced to the private sector. Local government institutions such as the municipal social welfare board or similar are responsible for ensuring that the standard of services complies with the applicable laws and regulations on the whole.

So how are standards enforced in practice?

The authorities have the power to inspect the operation of care homes – and the standard of care that they provide – based on complaints and reports of irregularities made by customers or other members of the public. The authorities can also perform inspections on their own accord.

If irregularities are found, the authorities have a number of ways in which to intervene, depending on the nature and seriousness of the irregularity.

The most common interventions are warnings and orders to rectify the issues that have been identified. Regional State Administrative Agencies and the National Supervisory Authority for Welfare and Health can threaten to fine a service provider or to close them down if an order is not complied with. Very serious irregularities can lead to a police investigation and even prosecution.

The care home crisis is not just an issue of the private sector

Dealing with issues relating to the care of older people has become routine for Regional State Administrative Agencies’ enforcement officials. A new enforcement case concerning the round-the-clock care of older people is filed somewhere in Finland almost every other day.

The complaints and the penalties imposed based on those complaints are fairly evenly distributed between private and public service providers. The care home crisis is therefore not just an issue of the private sector and cannot be blamed on outsourcing, as has sometimes been claimed.

More problems have indeed been reported regarding private care homes in recent years, but there is a natural explanation for this: the percentage of private service providers has increased considerably.

The great majority of the irregularities identified by enforcement officials are either directly or indirectly related to the standard of care. The problems most commonly relate to the administration of drug therapy and basic health care, the provision of palliative care as well as hygiene, meaningful activities, patients’ self-determination, internal controls and keeping treatment and service plans up to date.

Staff shortages are another frequently encountered irregularity, which also affects the standard and nature of care. The issue in most cases is lack of qualified staff.

Not all complaints lead to penalties, but around half do. And considering what the complaints are about, that is a high percentage.

However, most of the penalties are at the lower end of the scale: it is usually enough to draw the service provider’s attention to the irregularities that have been identified and to instruct them informally on how to rectify the situation. For example, we only found one case in which a service provider had been threatened with a fine and no cases where an operation had been closed down. This has naturally changed since we completed our study, as recent news reporting clearly shows. Several care homes have also closed since 2019.

What needs to change: a message to decision-makers

The most important objective of regulation relating to the standard of care is to ensure that every older person gets the care that their personal circumstances require.

Based on the enforcement authorities’ records, which is what we based our study on, this is not currently the case.

The approach to resolving the issues that exist with the standard of care for older people has been to reform the Elderly Care Act. The Act now stipulates that all service providers must deploy a standardised care planning and monitoring tool known as RAI (Resident Assessment Instrument). RAI has the potential to provide concrete evidence of the needs of individual patients.

The amended Elderly Care Act also lays down a minimum requirement for the number of staff (0.7) in services for older people. This rule is being adopted in stages, and all service providers must be fully compliant by the spring of 2023. According to the latest information, staff shortages have already forced some service providers to turn away patients due to lack of staff.

The regulation concerning the enforcement of standards in the care of older people still needs to be streamlined. Internal controls are important but clearly not enough to ensure the standard of care. Internal controls could, however, be made more effective by enacting more detailed provisions on service providers’ obligation to publish information online.

Having to post their internal control protocols on the internet for all to see would give service providers an incentive to define what quality is and how standards are enforced.

There are considerable weaknesses in the enforcement system as a whole at the moment. There is no clear planning procedure, although it appears that the idea is for the system to be hierarchical. In other words, local governments are responsible for official controls at the local level, Regional State Administrative Agencies at the regional level, and the National Supervisory Authority for Welfare and Health and the supreme overseers of legality at the national level.

However, it is paramount for the law to clearly and firmly place the primary responsibility for enforcement on the authorities that are mandated to provide services, as this would force these authorities to start proactively scrutinising the practices of the private and public service providers that operate in their respective jurisdictions.

Giving local governments similar powers to impose penalties on service providers as permit authorities currently have is also an option worth exploring. Enforcement officials must be able to issue binding orders on standards in all circumstances, and the penalties for breaking the rules must be clear and sufficiently severe.

Simply giving warnings and pointing out issues that must be rectified going forward cannot be considered adequate deterrents for operators such as municipal care homes to change their ways, when these operators are responsible for the care of the most vulnerable members of society.