As its 2021-2025 strategy has developed, the CQC forewarned us that it would be taking a more flexible approach to inspection activity and ratings.
We have been a vocal critic of some of the rigidities of the past regime, but increased flexibility in regulation is not without its pitfalls, and we have been waiting patiently to learn what the CQC actually mean by “flexible” in this context. At last it appears we are getting some more insight. The CQC is seeking feedback on inspection methodology in the form of three surveys, which signal potentially significant changes to current inspection and ratings activity.
The CQC say it is seeking views on the criteria against which inspectors will determine the quality of a service, which will presumably dictate what it will look for during inspections, and how it will use that to form judgments on quality. It has until now been operating under the “Key lines of enquiry, prompts and ratings characteristics for adult social care services” (the “KLOE Characteristics”) guidance which sets out the characteristics by which it measures the “key lines of enquiry” (i.e. is a service safe, effective, responsive, caring and well-led?) for the purposes of ratings. These are not the only criteria which are relevant – regulatory breaches can, for example, limit ratings in their own right – but they are a useful starting point. They act as a helpful benchmark for providers as to what rating they are likely to (or should) achieve, and when they may have grounds to mount a challenge to a proposed rating in a draft inspection report.
The three surveys together consider two sets of “statements” which will apparently replace or at least significantly change past methodology. The survey questions suggest that the CQC has already decided on the approach at a headline level but are now seeking input on the finer details of how this might work in practice. It is proposing to assess quality using two matrices, with an emphasis on what the public think of a service as a starting point using “I Statements”, then turning to a further assessment of quality from the CQC’s own perspective using “Quality Statements”.
“I Statements” – the CQC say these will help them better see services through the eyes of the public although though is not yet clear exactly how inspectors will do this, nor if they will verify what they see as the public’s belief, and if so, to what extent and by what means.
“Quality Statements” – the CQC say these will help to “remove duplication” of the existing KLOE Characteristics. The CQC are consulting separately on what criteria it will look at for the “Safe and Effective” and “Responsive, Caring and Well-Led” domains respectively, when making their assessment on quality. It would appear that it will be doing away with some of the detail from the KLOE Characteristics.
Without more detail it is difficult to understand exactly how the CQC envisage the new approach will work and without more, it is hard to see how it will make things any better. In respect of the “I Statements”, for example, the CQC envisage that this will be the starting point for assessment, which suggests it is going to pay a lot of weight to them. Are inspectors going to just put themselves in the shoes of the public and make subjective judgments and run with them, or will they verify their conclusions with the public before doing so? The former presupposes that inspectors can put themselves in the shoes of every individual member of the public in the context of each and every service and we doubt, with the greatest respect to CQC inspectors, that they can ever realistically do this. Even if the “I statements” are properly verified with the public, issues could still arise because it presupposes that all members of the public will understand the context of the regulatory framework under which the CQC is asking the questions, so their views will not necessarily verify (or discredit) the CQC’s views with that in mind.
Given that that “I Statements” will be assumptions based on (probably) hearsay or on observations which might never be verified, this could be a dangerous starting point to take, at least without proper safeguards in place. The voice of the public is of course vitally important but that is not to say that the general public are always the best marker of regulatory compliance of a particular service at a particular time, which is actually what the CQC is there to look at when it inspects. To take an example in another regulatory context, people may not like their own banks’ service but that does not mean that they should take the place of the financial services authority when deciding if a bank is compliant with the strict rules under which they must operate.
Taken together – i.e. more focus on individuals’ views and less focus on measurable characteristics as judged by an expert, trained CQC inspector – it would suggest that CQC will adopt a much more holistic approach to inspection and ratings. Again, this is not necessarily an issue but it does beg the question of how there can ever be any improvement in consistency of application, which is already a problem encountered by many providers, even with the known entity of the KLOE Characteristics.
Of course we will have to wait and see what follows from the surveys and it is not clear how the CQC came to the decision to use “I Statements” and “Quality Statements”, nor what other options it considered. Whether or not the new methodology, when it comes, will bring about quicker, more current and more proportionate inspection reports (and ratings), which is actually what providers need, remains to be seen. The existing KLOE Characteristics were not perfect, but were well known and relatively clear for providers and inspectors alike to understand. However, it is normally the CQC’s application of them, rather than the criteria themselves, which our clients need to take issue with. New inspection criteria will not, without more, solve this problem. Further, new, and less prescriptive criteria, based on (possibly unverified) assumptions about the public’s views of a service from the subjective view of a CQC inspector, can only make things less transparent, and harder for providers to legitimately challenge the CQC when they need to.
Even if these concerns are addressed in any new methodology, the pessimists amongst us may be forgiven for thinking that this approach will prompt minor improvements in providers’ experiences at best. The fact remains that the CQC’s approach to inspection activity has already started to swing against providers. Save for first inspections for new registrations, inspections continue to be prompted by risk. So, for the most part, inspectors will come in with the incentive to find the negatives, to justify them crossing the threshold in the first place. The new methodology might just give them more opportunity to find those negatives when it does come looking.
Even if we are being overly pessimistic, any shift in regulatory approach or policy is likely to increase inconsistency and ambiguity in application in the short to medium term for providers, because it will take the CQC time to get to grips with any new inspection methodology and adapt their minds to new ways. It will also take time for providers to do the same in response to any changes.
Whilst the regulatory requirements on providers do not in theory change under the new strategy, they are likely to feel any shift in approach, and may find that they need to bring more frequent and more robust challenges, whether in the context of draft inspection reports, proposed ratings or enforcement activity, to have any chance of getting the outcomes they deserve. Even in this uncertain world, however, providers can take steps to protect themselves and be in the best possible position should they need to raise a challenge, if that ultimately becomes necessary.
With the right approach and strategy, we are often able to support clients to secure more positive outcomes, even in this uncertain and changing climate. Robust factual accuracy challenges, representations to enforcement notices and complaints are already playing an increasingly important role. Providers would also be sensible to ensure that they obtain more of their own, preferably positive, feedback from service users, families and other health professionals in case they need to present an alternative “user” view of their service.
If providers would like advice on CQC strategy and inspection activity, or assistance in CQC matters more broadly, the Ridouts team can assist. To speak with one of our specialist lawyers, please contact us on 0207 317 0340 or email firstname.lastname@example.org.