Warning! Don’t Ignore the Warning!

Hardly a day goes by when the Care Quality Commission (CQC) is not in the news.  The CQC opened its doors for business on the 1st April 2009.  It came into being with the passing of the Health & Social Care Act 2008 with a view to establishing a single, integrated regulator for Health and Social care.  Previously, three separate bodies performed this role.  The intention was to create a consistent approach to regulation across Health & Adult Social Care in England.

The role of the CQC is to monitor the services of registered providers to ensure that essential standards of care are being met.

The 2008 Act, together with associated Regulations, give the CQC a variety of powers to intervene and take action against providers where the requirements of the Act and Regulations are not being met.

The effectiveness of the CQC’s approach to Regulation came under close scrutiny as a result of a series of high profile cases, not least of which was the exposure on a BBC Panorama programme of widespread abuse at the Winterbourne View Home in Bristol.

In February 2012, the Department of Health published a performance and capability review into the workings of the CQC.  The review recommended that the CQC place more emphasis on their core purpose, namely to register providers of Health & Adult Social Care Services, inspect such services to check how they are meeting essential standards of quality and safety, enforce the standards where there is evidence of non compliance and publish information with a view to supporting these aims.

To assist in this role, providers may be subject to different types of inspection by CQC officials.  There may be a scheduled inspection, planned in advance and undertaken on a periodic basis to monitor progress.  There may be a responsive inspection, carried out at any time in response to concerns which may have been brought to the attention of the CQC by other agencies, service users or their families about matters of concern at the provider’s premises.  Finally, there may be a themed inspection which looks at specific areas that are of national concern, for example record keeping or staffing.

If the CQC Inspector uncovers any areas of concern during the course of such inspections a range of options are open to the CQC as to the steps to be taken to ensure compliance.

The CQC publishes guidance about compliance and describes the outcomes which they expect people using a service to experience.  In addition, the CQC operate what is termed a judgment framework, a forced age test which determines whether there is sufficient evidence to form a view as to the quality of care being delivered, whether the evidence available demonstrates non compliance with the Regulations, the impact of such non compliance on service users and the appropriate Regulatory response to such non compliance.

The enforcement policy emphasises proportionality of response with an aim to encouraging improvements in delivery of care and avoiding the need to take formal enforcement action wherever possible.

Inherent within the CQC’s model is an escalation of action to reflect the magnitude of the breach of the Regulations and the potential for harm which arises as a consequence of the breach.

The powers available to the CQC draw on both criminal and civil law with the ultimate sanction being withdrawal of registration which prevents the provider from operating at all.

By far and away the most common enforcement power currently in use by the CQC is the Warning Notice.

Warning Notices inform a provider of a breach of legislation.  Where non compliance is ongoing, the Notice will set out a time scale for achieving compliance.

When a provider receives a Warning Notice the guidance issued by the CQC to registered persons in April 2012 allows 5 working days for the making of representations about the Warning Notice.

Providers need to be aware that as part of the CQC’s Enforcement Policy they publish a decision to issue a Warning Notice.  This usually takes the form of a press release to local media.  Clearly, the potential for significant reputational harm is obvious as is the risk that service users and their families may first hear of concerns (which may not be well founded) about the quality of care through possibly sensationalist and misleading local press reporting.

The guidance note states that any representations about the contents of a Warning Notice must be made in writing rather than verbally.  Whilst the CQC say that this is to avoid misunderstanding around the content of any submissions about the Warning Notice it also increases the burden on the provider to ensure that the response to the Notice is both prompt and effective.

The guidance issued by the CQC also suggests that representations about the Warning Notice are limited to the decision to publicise the fact that a Warning Notice has been issued rather than deal with the factual circumstances which led the CQC to decide that a Warning Notice is appropriate.

The CQC have adopted the stance that arguments about factual accuracy are to be dealt with in the context of the issuing of a copy of the Inspection Report which will be prepared by the Inspector after the visit which give rise to the decision to issue the Warning Notice in the first place.

The difficulty with this approach is that, in practice, the Inspection Reports are usually prepared several weeks if not months after the inspection takes place and after the decision to issue the Warning Notice has been made.

It follows therefore that if a provider wishes to challenge the decision to issue a Warning Notice on the grounds of factual inaccuracy, they are at a considerable disadvantage in not having available the draft Inspection Report at the same time as the Warning Notice of issued.

There is no support within the Regulations for the stance which the CQC appear to have adopted, namely to limit the right to make representations about a Warning Notice to the decision to publicise the making of the Notice and the right to comment on the factual accuracy of draft Inspection Reports.

The legislation requires the CQC to issue a Warning Notice before they can consider a criminal prosecution for certain offences under the legislation.  Furthermore, continuing breach of the contents of a Warning Notice will entitle the CQC to take further enforcement action where the breach is continuing, to include a range of civil measures that could limit or curtail entirely the ability of the provider to continue to deliver care.

In reality, the CQC use the powers available to them under the criminal law rarely.  The main reason for this is because such enforcement action fails to address the practices giving rise to the breach of the legislation in the first place.  It is to be borne in mind that the primary aim of the CQC is to ensure compliance; the criminal law is too blunt in instrument to achieve that goal.

For that reason, the CQC consider the use of Warning Notices to be an effective tool in their possession to secure compliance.

Given the very tight time scale of only 5 working days allowed to providers to challenge the decision of the CQC to publicise the existence of the Warning Notice (and a further 10 days only allowed for challenging the factual accuracy of a draft Inspection Report) it is of the utmost importance that there is early engagement with the CQC if a Warning Notice is issued, particularly where the decision to issue the Notice may be based on factual inaccuracies.

In light of the renewed focus on its core duties, it is clear that the manner in which the CQC seeks to exercise its enforcement powers will remain a matter of great importance to providers.

The key to ensuring an effective outcome to enforcement action is to seek early advice as to how best to respond.  Providers who fail to respond promptly to the issuing of a Warning Notice run the risk of significant reputational harm in the short term and damage to the financial well being of the business in the future.

For more information on the topics mentioned above, please contact Mark Quigley.

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