Over the last few months we have frequently written about the CQC moving away from timetabled inspections, now inspecting on the basis of perceived risk. At Ridouts we have seen, not only, an increase in action taken by the CQC against providers, but action at the highest level, through the issuing of Notices of Proposals and Decisions with the intention to curtail a provider’s business in some way, including cancelling registrations.
When the CQC issued its Strategy in 2021, it noted that it wants to, amongst other things, ensure it provides “more dynamic and flexible regulation that provides up to date and high quality information and ratings….” We are still waiting to see what this actually looks like in practice but at the moment, inspection based on perceived risk only means two things:
1) A likely increase in the number of services being rated Inadequate or Requires Improvement, on the basis the CQC is coming in looking for evidence of some concern, having been anchored by the information it received prior to its inspection. Indeed, in the first 6 months of 2022, 815 services have been awarded a rating of Requires Improvement or Inadequate; and
2) Services that are not deemed a risk being stuck with a rating that may no longer be accurate (for better or worse).
Neither situation necessarily provides up to date and high quality information and ratings.
In order to achieve this the CQC has to, surely, move away from perceived risk only and back to some form of regular inspection or, at the very least, an opportunity for providers to submit information to the CQC, to demonstrate why another inspection should take place – i.e. the situation has changed requiring a change in rating. Arguably this is the purpose of the Provider Information Return, but this only requires to be submitted once a year and a lot can change in a health and social care setting in 12 days, let alone 12 months. It also shouldn’t be for providers to “pitch” to the CQC for a re-inspection trying to persuade the CQC to use its limited resource to inspect for a positive outcome when that resource may be needed to review a service that is falling short of expected standards. The CQC’s resourcing issues should not be providers’ problems but invariably it becomes theirs.
As at the 1 July 2022, the CQC’s data revealed that the vast majority of Adult Social Care services had a rating of either Outstanding or Good – 84%, with the remaining 16% rated either Requires Improvement or Inadequate. However, what is most interesting about the services that are rated Requires Improvement or Inadequate is the fact that under the old timetabled inspection regime, these services should have been re-inspected after 12 months and 6 months respectively but over 50% of those had not been re-inspected as at 1 July 2022. What is most concerning is that many of these ratings are many years old – with some Requires Improvement services dating back to 2016 and some Inadequate ratings dating back to 2019. These are services with ratings between 3 and 6 years old!
I don’t know why they haven’t been re-inspected and the purpose of this exercise is not to shine a light on those providers but rather the CQC has services that it hasn’t inspected for years. Under the old regime these should have, on the face of it, been inspected. It’s hard to imagine how the CQC will manage dynamic regulation and inspection when it hasn’t managed to achieve all scheduled inspections.
If the CQC wants to provide more contemporaneous ratings then it needs to devise, not only, a system that enables ratings to be reviewed and updated more frequently but a system that treats providers fairly. Two of the biggest bug-bears of our clients are fairness and equality – inconsistency amongst inspectors in what one deems to be an issue and another doesn’t leads to frustrations and often the need to challenge inaccurate as well as unfair and non-proportionate inspection reports.
The new Single Assessment Framework that is being introduced by the CQC is interesting. The CQC will review the evidence against each required evidence category and give a score of 1-4 based on the strength of the evidence it finds. The CQC will then take an average of these scores to give a score for a Quality Statement. The Quality Statement scores will then be combined and the CQC will calculate what this is as a percentage of the score available. The CQC will be moving away from longer form descriptive reports to shorter statements based on the scores. Whilst this will be translated into ‘Outstanding’, ‘Good’, ‘Requires Improvement’ or ‘Inadequate’ (presumably corresponding to scores 1, 2, 3 and 4) can quality of care really be distilled down to a number? I fear that many nuances will be missed which are already a problem in the formulaic reports we currently see.
On 5 July 2022 the Department of Health and Social Care launched a post-implementation review of three sets of regulations that provider’s registered and regulated under the Health and Social Care Act 2008 have to comply with (The Care Quality Commission (Registration) Regulations 2009; the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Care Quality Commission (Reviews and Performance Assessments) Regulations 2018). The purpose of the review is to determine: whether the regulations meet their original objectives; whether their scope is still appropriate and proportionate; their impact on providers; and whether any changes are required to achieve those objectives with a system that imposes less regulations or to change what the regulations prescribe.
There were a range of questions about the regulations themselves but two questions piqued my interest:
- In your experience, are different providers (for example, NHS, adult social care, independent providers and voluntary sector healthcare providers) treated fairly and equally by the CQC under the 2014 Regulations.
- In your experience, are providers treated fairly and equally by the CQC under the 2014 Regulations across settings (for example, acute hospital, community care, mental health and primary care?)
Any business involving humans and, in particular, humans exercising judgement is going to have an element of differences. We need structure and boundaries to ensure that a common ground is maintained, but enable some discretion to enable inspectors to move away from the designated programme to reach a fair and equitable outcome. And herein lies the problem – how do you balance the two? Can you balance the two? Is training the way forward or should there be an enhanced system that enables providers to challenge what the CQC thinks. Now at Ridouts we use the word ‘challenge’ a lot but I know that it is a word that brings with it some negative connotations and conjures the image of going head to head with CQC. Unfortunately, this is frequently our experience because they are a regulator that hates to admit it got something wrong. On many occasions, where we have submitted representations to a Notice of Proposal, the CQC, instead of saying, actually you were right, we got things wrong or the action wasn’t proportionate it skips over the substantive section and says in its Notice of Decision, ‘we were right to take the action we did, but it’s now no longer appropriate’.
What is needed is a clear system for ensuring ‘challenges’ are fairly considered (perhaps not by the inspector themselves, after all who likes to be told they haven’t done something quite right) and thoroughly considered (not rushed through in order to meet publication KPIs) but not take so long as to have a negative impact on a service. We know how often local authorities rely on CQC ratings to justify their own actions. We know that ratings have a huge commercial impact on providers, not only from a commissioning perspective but also a financial perspective with banks and insurers often giving weight to a rating to help inform their own decisions.
The Single Assessment Framework is the latest iteration of a rating system that the CQC (and its predecessors) has tried over the years. We’ve had ‘Compliant and Non-compliant’, we’ve had ‘Major, Moderate and Minor’ issues, we’ve had star ratings, we’ve had green ticks and red crosses, and we’ve currently got ‘Outstanding, Good, Requires Improvement and Inadequate’. Reinventing the label is neither here nor there. What is needed is the CQC to be adequately resourced to enable appropriate systems to be implemented and run with checks and balances in place to enable sensible discussions, supported by evidence, to take place where there is disagreement. If the CQC still has services that last received a rating many years ago, it has a long way to go before any system can be regarded as dynamic which provides accurate contemporary ratings.
If you would like help with, or advice on, how to deal with the CQC, and any action it is seeking to take against your business please contact our specialist team of solicitors on 0207 317 0340.