At its most recent board meeting, CQC discussed its wish to persuade the Department of Health to amend existing legislation to enable it to “demonstrate when it has forced positive action” from providers. Currently the CQC is not permitted to publish information on any enforcement action being taken against a provider until that action has been completed. Andrea Sutcliffe, CQC’s Chief Inspector of adult social care, has now argued that this position is unhelpful to the regulator and that it should be able to demonstrate to the public when it has “forced positive action”. This would include a publication of any enforcement action that the CQC took against a provider at the beginning of the process, before the provider had the opportunity to respond to any proposed action. In addition, it would allow the CQC to publicise action it had taken even when a provider has improved its service and the enforcement action was ceased.
We at Ridouts have serious concerns about the clear risk that this would pose to providers, particularly those who are subject to enforcement action that is based on potentially false, unreliable or historical information. Currently providers have a set period of time in which to digest any enforcement action being taken and put to the CQC their own representations. Such representations can include information which evidences that the information on which the CQC are relying is flawed or information to show that the basis of the enforcement action being taken (for example a proposed cancellation of a Home’s registration) no longer applies to the service because such significant improvements have been made that the Home is now compliant with the relevant legislation.
It is vital to note that when the CQC takes enforcement action the process can span several months. During that period, the views of the CQC and the provider are both discussed through a formal representation process and the CQC will then arrive at an outcome. If the action involves the First Tier Tribunal (Care Standards) then the Tribunal could have the final say. After the action is complete, and in specific circumstances, the CQC is entitled to publish information on what enforcement action was taken. This approach allows the provider a “fair hearing” and the opportunity to respond to the allegations put to them by the CQC safe in the knowledge that the matter will not be publicised until an outcome is reached. This approach supports the theory of natural justice. It also prevents a potential “trial by media” as well as withdrawal of support from service users, their families and commissioning bodies. Such a withdrawal could have catastrophic effects on the viability of a business.
If the CQC were able to publicly announce that it was taking enforcement action against a provider before that provider had been afforded the opportunity to respond to any allegations made, then this would leave the provider at a serious disadvantage and rob them of the natural justice to which they are entitled. Judgements about the service would be made by existing service users, potential service users and commissioning parties, all of whom may decide to avoid continuing or indeed beginning a relationship with that service. If it then transpires that the enforcement action being taken by the CQC was embarked upon without just cause or the information on which it sought to rely was determined to be flawed, then it could be argued that the CQC would expose itself to claims of defamation by providers.
Andrea Sutcliffe’s plea to the CQC board is borne out of a desire to show the media and the public that the regulator is effective and that it is holding providers to account. Whilst it is understandable to want to push her personal agenda, this cannot be at the expense of providers and their reputations. The CQC and its representatives are not infallible and any enforcement action should only be publicised when it has been determined, unequivocally, that it was justified. Ms Sutcliffe’s need to tarnish providers’ reputation at the earliest opportunity is not helpful, nor will it “aid service users” as she claims it will.
Many providers and service users have lost faith in the CQC and are likely to prefer its focus to be shifted to ensuring that inspectors are well-trained, consistent and able to collect and corroborate reliable evidence at inspections rather than thinking of ways to boost its public profile.
Whilst the CQC clearly operates in the interests of service users, it also owes providers a fair and transparent hearing based on detailed and comprehensive investigations. Such conclusions cannot be drawn in the midst of a media witch-hunt and on that basis; there should be no question that any publicity pertaining to enforcement action should only be generated after the process has been completed.
