Providers may find themselves involved in safeguarding investigations, whether that is through self-reported matters or because third-parties make a referral or allegation.

A section 42 enquiry can sometimes lead to difficult, protracted and opaque safeguarding investigations.  They can lead to embargoes and large-scale investigations.  Sometimes contracts can be cancelled and service users moved. 

Investigations can be highly disruptive, drain morale and leave services financially vulnerable with reputations damaged.

Providers can find themselves subject to investigations which are fundamentally unfair with incorrect conclusions drawn.  Even if the final findings demonstrate there is no basis for the allegation, damage can have already been caused. 

Ridouts can help you by:

• securing early and full disclosure of allegations and helping providers respond to them;
• helping providers to present evidence to challenge allegations, where necessary;
• emphasising that authorities should carry out investigations fairly and swiftly;
• attending meetings to help providers put across their case thoroughly and clearly;
• challenging the removal of service users by helping residents secure their own legal representation in conjunction with providers;
• challenging embargoes/suspension of placements and cancellation of contracts;
• challenging procedurally unfair processes and procedures.

Outcomes achieved include:

• Long-running investigations brought to a swift conclusion
• Allegations unsubstantiated
• Successful outcomes at safeguarding meetings
• Embargoes lifted
• Service users not being removed from the service
• Ensuring enquiries fell within scope of s.42 enquiries

Any business falling within the scope of registration must be registered with the relevant regulator, be it the Care Quality Commission, the Care Inspectorate Wales or the Care Inspectorate.

The process of registration can be complicated and lengthy but if a provider prepares itself thoroughly then it should run more smoothly. Our team of specialist lawyers can make sure that this process is as seamless as possible.

Providers of learning disability services are, in particular, faced with registration difficulties given the CQC’s reliance on guidance documents such as ‘Right Support, Right Care, Right Culture’ and imposing restrictions on the number of beds and location, amongst other things.

Ridouts can help you by:

• Establishing which regulated activities/services you will be providing;
• Guiding you through the application process;
• Reviewing your Statement of Purpose;
• Considering any additional guidance that the regulator might require you to rely upon when applying for registration;
• Assisting with the registration of your manager;
• Making sure that all relevant applicants have applied for the relevant enhanced DBS checks;
• Reviewing the completed application before submission;
• Advising in the event of the regulator refusing to register a service.

Outcomes achieved include:

• Successful registration of new services
• Successful registration of services following provider company restructure

The CQC has extensive enforcement powers which, if exercised, can have a major impact on providers’ registrations.   These powers can be taken on notice or, if urgent, on an emergency basis.

The CQC can serve a:

Notice of Proposal (NOP) to:

• Cancel your registration
• Suspend your registration
• Vary your registration by removing a location (and effectively cancel its registration)
• Vary your registration to stop you from doing something, such as restricting admissions to a home
• Vary your registration to make you do something, such as provide action plans to the CQC

Ridouts can help you to draft representations to the NOP setting out why the proposed action should not be taken.

Notice of Decision (NOD) to:

• Cancel, Suspend, or Vary your registration which confirms a Notice of Proposal already issued.
• Suspend or Vary your registration on an urgent basis under section 31 of the Health and Social Care Act 2008. This means the decision takes effect immediately, and providers should comply or face committing a criminal offence.  Such action can result in services having to cease and service users being removed immediately.

Ridouts can help you to appeal the Notice of Decision to the First-Tier (Care Standards) Tribunal.

Magistrates’ Court Order:

• Cancelling a provider’s registration on an urgent basis, which takes effect as soon as the order is made.

Ridouts can help you to appeal the order to the First-Tier (Care Standards) Tribunal.

Such action can be highly damaging, reputations can be tarnished, providers can be prosecuted for failing to comply with conditions of registration and businesses can be lost.

Ridouts can work with you to build a robust response to these types of action.

Letter of Intent

The CQC may issue a Letter of Intent to Providers.  These are used as a pre-cursor to the above types of action.  These letters ask the providers to respond within a short timeframe (often 24 hours or less) to assure the CQC that suitable action is being taken to mitigate perceived risk.

Ridouts can help you by:

• Assisting with responses to Letters of Intent to provide reassurance to the regulators that enforcement action is not required;
• Advising on the strength of the case contained within Notices of Proposals (“NOPs”) and Notices of Decision (“NODs”);
• Drafting comprehensive responses to NOPs and NODs and identifying supportive evidence;
• Appealing NODs to the Tribunal; including drafting witness statements, attending case management hearings and preparing bundles for disclosure;
• Representing health and social care providers at emergency closure hearings in the Magistrates’ Court.

Outcomes achieved include:

• No further enforcement action taken following a Letter of Intent
• Notices of Proposals not adopted
• Successfully appealing Notices of Decisions
• Negotiating settlements of enforcement action ahead of Tribunal proceedings
• Provider registrations preserved

Commissioning Contracts and Fee Disputes 

Commissioners of care will carry out contract monitoring visits of services to ensure providers are meeting the terms of their contract.  These visits may take place as a matter of course, or because they have been prompted by a safeguarding alert or a regulator visit.  

Sometimes these visits are used to try and reduce fees or result in commissioners seeking to cancel the contract based on an alleged breach of contract.  Sometimes they will try and remove service users. 

Often the actions of the commissioner can influence those of the regulator, and vice-versa. 

Ridouts can help you by: 

• Challenging contract monitoring findings; 
• Challenging cancellation of contracts; 
• Challenging the removal of service users by helping residents to secure their own legal representation in conjunction with providers; 
• Challenging commissioner attempts to reduce fees; 
• Reviewing contracts to analyse whether a fee increase is payable. 

Outcomes achieved include: 

• Successful challenge to cancellation of commissioning contracts 
• Successful challenge to suspension of commissioning contracts 
• Re-negotiating fee rates 

The Competition and Markets Authority (“CMA”) has, in recent times, cast doubt on some terms that are often in contracts between providers and independent paying residents.  This includes up-front payments for admission into a home (a ‘joining fee’) and after death liabilities. 

Providers should review their existing agreements to ensure they do not fall foul of consumer law.  These contracts usually address medium to long term arrangements so the validity and enforceability of them is important when considering the business security of a care service. 

Ensuring that your customers understand proposed terms and commit with informed knowledge is important.  Failure to do so could render agreements unenforceable and could result in regulatory fines or claims for damages. 

Ridouts can provide advice to providers on these contracts, whether it is a one-off agreement or management of contract arrangements on an on-going basis. 

Ridouts can help you by: 

• Reviewing existing contracts; 
• Providing standard form contracts; 
• Providing customer information packs; 
• Providing an online webinar on contract management; 
• Providing telephone advice on contract troubleshooting. 

Outcomes achieved include: 

• Drafting new service user agreements which are CMA compliant 

Sometimes an inquest will be held following the death of a service user in a health and social care setting. 

The purpose of an inquest is to establish facts.  It is not to apportion blame and the conclusion should not use language that suggests civil or criminal liability.  However, there are conclusions and language used that may have a negative impact on your service, including findings of neglect. 

Deaths and inquests can prompt action from the police, commissioners and the regulator and can be used to support a civil claim or criminal action.  

Providers can participate in proceedings and often it is beneficial to do so as it allows a provider to access documentation they would not otherwise be entitled to; ask witnesses questions; make submissions on the scope of the inquest and possible conclusions (if legally represented); and minimise the possibility of a Prevention of Future Deaths report (PFD Report) being issued.  This is a report that Coroners have a duty to issue at the end of an inquest if they believe steps could be taken by parties to prevent deaths arising from similar circumstances in the future.  If a PFD Report is issued to you, a response must be provided.   The PFD Report and responses are usually published. 

Inquests can also attract media attention. 

If managed properly then the risk of damage to your business from negative findings can be minimised. 

Ridouts can help you by: 

• Securing providers ‘interested person’ status; 
• Obtaining disclosure; 
• Advising on the evidence; 
• Taking witness statements; 
• Making legal representations to the Coroner; 
• Advising on responses to PFD Reports from the Coroner; 
• Advising on the merits of any further contemplated proceedings; 
• Help to manage media interest in conjunction with a PR firm, where necessary. 

Outcomes achieved include: 

• Avoidance of neglect findings 
• Avoidance of negative conclusions  
• No Prevention of Future Death reports issued 

Following site visit inspections the Care Quality Commission will produce an inspection report recording its findings.  This includes rating a service.  These reports are published and providers of adult social care must display their ratings.   

Negative findings, breaches of regulations or ratings of ‘Requires Improvement’ or ‘Inadequate’ can have a negative effect on a service.  Equally a provider may be expecting a rating of ‘Outstanding’ but receives ‘Good’ and wishes to make representations about this. 

Providers have a short period of time to make factual accuracy comments and challenge the ratings made.  If you do not make representations, you will be deemed to accept the findings. 

Inspections can lead to other enforcement action.  This can happen immediately or following a succession of reports showing non-compliance. 

Providers can suffer reputational, staffing and financial damage as a result of an inaccurate inspection report. 

Ridouts can help you to challenge the factual accuracy of the report and the rationale behind the judgements.  We will work with you to gather evidence and put together as robust response as possible.   

Ridouts can help you by: 

• Drafting factual accuracy comments submissions; 
• Collating evidence in support of factual accuracy comments; 
• Challenging ratings; 
• Rating Reviews ; 
• Pre-action protocol letters and complaints where comments to inspection reports have not been thoroughly or properly considered. 

Outcomes achieved include: 

• Increase in individual KLOE ratings 
• Increase in overall service rating 
• Removal of breaches of regulation 
• Removal of allegations 
• Changes to negative language used 
• Reports withdrawn and re-inspection carried out 

The legal liabilities that flow from non-compliance with the Mental Capacity Act (“MCA”) are significant. The provisions of the MCA are mandatory.  Individuals and organisations can be the subject of criminal and civil sanction. However, get it right and the MCA affords a high degree of legal protection to carers and providers, while at the same time ensuring the rights of incapacitated adults are upheld. 

The Mental Capacity (Amendment) Act 2019 is due to come into force on 1 April 2022 and will replace the Deprivation of Liberty Safeguard system (a scheme that has always been met with confusion and often incorrect application in the sector) with the Liberty Protection Safeguards. 

Ridouts can help you by: 

• advising providers on all aspects of compliance with the MCA; including: 
• putting in place lawful policies and procedures in relation to capacity assessments and best interests’ decision-making; 
• advising on the need (or otherwise) to make DOLS/LPS decisions in relation to particular service users. 

Incidents can occur at a service which may lead to a police investigation.  This could be a death of a service user or a serious incident, such as an allegation of abuse.  Police investigations take priority over other authorities, but providers may still face scrutiny from other bodies such as the CQC, Local Authorities, Commissioners and the Coroner.  

Such investigations can be confusing, concerning, demand a lot of provider’s time and impact the day- to-day running of a service. 

Offences the police may investigate include: 

• ill-treatment or wilful neglect 
• assault and sexual offences 
• gross negligence manslaughter 
• corporate manslaughter 

Prosecutions for such offences can result in prison sentences, unlimited fines and an inability to work in the sector again. 

It is important to understand how such investigations can impact your business but also how best to handle them if they do occur. 

Ridouts can help you by: 

• Understanding what rights the police have, including entry into a service and access to documentation; 
• Understanding your rights as a business owner and what action the police may take against the business and individuals; 
• How to handle police requests to speak with staff and people involved in the care of service users at the heart of the investigation; 
• Attending police interviews and interviews under caution; 
• Advising in relation to a co-ordinated response to all interested stakeholders. 

Outcomes achieved include: 

• No prosecution brought for alleged criminal offences 

Health and social care providers who are also registered as nurses or doctors often have to deal with a two-pronged attack from regulators because they may have to deal with criticisms from both the provider regulator, such as the CQC, as well as from professional regulators, such as the General Medical Council (GMC) or the Nursing and Midwifery Council (NMC). There is also greater emphasis now on regulators sharing information between bodies. This means that provider regulators and professional regulators are likely to refer matters to each other where appropriate. 

When dealing with any form of disciplinary procedure, things can get difficult and complicated. If you do have to deal with both a professional regulator alongside your provider regulator, Ridouts team of specialist lawyers can advise on both aspects as each is likely to impact on the other. 

Ridouts can help you by: 

• Advising and representing providers faced with GMC, NMC, GDC or HCPA proceedings; 
• Challenging decisions to impose interim orders against nurses or doctors; 
• Challenging, in appropriate cases, that there is no case to answer with the result that the case never reaches a substantive hearing; 
• Help to identify the evidence which a panel is most likely to find persuasive if individuals do attend a hearing; 
• Drafting witness statements and helping to identify which are the most appropriate documents to exhibit; 
• Conducting the advocacy at interim order or substantive hearings; 
• Help conducting appeals against professional regulators in the High Court, if appropriate. 

Criminal prosecutions can arise from regulatory or criminal breaches.  Health and social care providers may face action from the Health and Safety Executive (HSE), the Care Quality Commission (CQC), the Care Inspectorate Wales, the Care Inspectorate or the police. 

Successful prosecutions can lead to substantial fines, sometimes imprisonment (including those in management positions of corporate providers) and, whether successful or not, reputational damage can occur. 

Prosecutions or threats of prosecution can have a knock on effect, and affect relationships with commissioners, service users, bankers and investors.  It will also impact your future regulation. 

Being faced with a prosecution can be highly stressful, disruptive and confusing.  Careful steps must be taken to ensure your case is put forward clearly and robustly.   

Ridouts can help you by: 

• Advising clients on HSE; CQC, Care Inspectorate Wales, Care Inspectorate and Police prosecutions; 
• Seeking advance disclosure from the regulators; 
• Preparing documents for submission to the regulators under statutory and non-statutory requests; 
• Helping clients to understand the nature of any interview and whether or not you should attend; 
• Helping clients to carefully prepare for any interview; 
• Advice on strategy and approach to the prosecution procedure; 
• Preparing a case should the matter go to court, including any necessary mitigating factors to minimise any resulting fines. 

Outcomes achieved include: 

• No prosecutions brought for regulatory failings 
• Reduction of fine for prosecuted regulatory breach 

When purchasing or selling a health and social care business you’re not just dealing with bricks and mortar.  All are subject to regulation, contracts and multi-stakeholder interest.  There are many aspects which can help assess the health and value of the business. 

Ridouts can help prepare a business for sale.  We can spot issues which may cause concern for purchasers allowing vendors to eliminate the problem ahead of time, or prepare an explanation which could comfort purchasers. 

We can organise and arrange documents for a disclosure room, be the central point of contact to field information requests and negotiate warranties. 

We can also advise the vendor on whether a purchaser’s concerns are valid and what impact these may have on the business for the purchaser moving forward which may impact the price the purchaser is willing to pay. 

Ridouts also act for purchasers. We help to identify regulatory issues that may affect the value of the business and therefore the appropriate purchase price.  We can provide a report to the purchaser and provide warranties to insert into the Sale and Purchase Agreement (where there is a share sale) or the Business Purchase Agreement (where there is an asset sale). 

The team have experience of undertaking health and social care regulatory due diligence in relation to the following types of businesses: 

• Care homes for adults (Dementia, learning disabled, Acquired Brain Injury, Mental Disorder) 
• Children’s homes 
• Special Schools 
• Independent hospitals (cosmetic surgery) 
• Non-surgical cosmetic treatments 
• Foster Agencies 
• Dentists 
• Medical Devices 
• Supported Living 

Ridouts is well placed to offer a health and social care regulatory due diligence service which will add value to any acquisition or divestment. 

If an adult is harmed or dies in your care as a result of suspected abuse or neglect then a health and social care provider can find itself under the spot light of multiple interested parties. 

This will involve a Safeguarding Adults Board and the Care Quality Commission (CQC) and providers may find that the police and coroner are also interested. 

The primary purpose of a Safeguarding Adults Review (SAR) is to learn lessons from the situation however, often a finger gets pointed at the professionals who were caring for the adult when they died, despite there being multiple party input to that care package. 

These processes can be complex, daunting and overwhelming. Ridouts is well placed to advice a provider during a SAR which are often document heavy, detail driven investigations. 

Ridouts can help you by: 

• Advising health and social care providers on the process to be followed; 
• Advising providers in relation to their Individual Management Report in order to protect their position (especially whilst there are on-going regulatory and police investigations); 
• Challenging aspects of the process which are procedurally unfair; 
• Challenging the Overview Report and Executive Summary to ensure they accurately reflect a provider’s position; 
• Reviewing documentation requested by the regulators and police to advise on whether there are any areas of potential concern. 

Outcomes achieved include: 

• Changes to Overview Reports achieved, including negative wording and findings about a provider. 

The CQC can ask any provider to provide it with information and documentation under Section 64 of the Health and Social Care Act 2008 if it considers it necessary or expedient to have for the purposes of any of its regulatory functions.  This is a wide remit and failure to comply with a request under Section 64 is an offence punishable with a fine. 

The request for information is usually because the CQC has a concern about the provider.  It is therefore important for a provider to consider how that information is presented to the CQC to assure the CQC, whilst complying with the request.   It is also important to understand what information is being supplied and how this may impact the provider should the CQC use it to take action against the provider. 

Ridouts can help by: 

• Assisting providers to determine what falls within the scope of the request; 
• Compile the requested information and present it in an appropriate format; 
• Advise providers what the request might mean for possible future action. 

Outcomes Achieved include: 

• Appropriately prepared documentation and explanation of information presented to the CQC 

Ridouts puts on training events for the sector and our lawyers are often asked to speak at external events too.  (You can watch past events here and sign up to our mailing list to be kept informed of events here).   

We also provide tailored in-house training to you and your staff, offering practical advice on key health and social care topics. 

We will liaise with you in order to tailor the session to you particular needs. Our team will explain issues in both a clear and practical way.  

Many of our clients have noted that the training provided by Ridouts, particularly in respect of preparing for inspection, has proven very beneficial to them and has enabled staff to fully understand the inspection process and empowered them to do themselves and their service justice. 

Ridouts can help you by: 

• Providing bespoke training sessions and materials that are delivered by knowledgeable professionals with wide experience in the sector; 
• The opportunity to interact with a legal professional on a number of issues pertinent to the running of a health and social care service; 
• The ability to deliver training in house or at a location of the provider’s choice. 

The CQC can issue a Warning Notice to health and social care providers.  This can be on the basis that the provider is deemed to have failed to, or is continuing to fail to, comply with a legal requirement.  Providers are given the opportunity to make representations about why a Warning Notice should be withdrawn or not be published. Warning Notices are a first step towards the CQC prosecuting a provider in respect of certain regulations and can be an indication of further enforcement action to come. 

If representations are not made to a Warning Notice then the provider will be deemed to have accepted the findings. The CQC has the power to publish information about Warning Notices and it does so routinely.  This can lead to press attention, reputational damage and prompt the interest of other parties such as commissioners. 

The CQC can issue Fixed Penalty Notices where a health and social care provider has failed, amongst other reasons, to comply with relevant legislation. Examples include where a service does not have a registered manager or where it has failed to make relevant notifications as per the regulations. Each individual breach can attract a fine of up to £4000, which can escalate. 

In respect of Fixed Penalty Notices the CQC has a duty to publish information once the fee has been paid. Again, press interest can lead to reputational damage. 

Ridouts can help you by: 

• Challenging the accuracy of any Warning Notice or Fixed Penalty Notice; 
• Making submissions as to the public interest value of publication of any notice; 
• Supporting Clients with advice on how to manage the public relations issues relating to press interest in a notice; and 
• Drafting representations as to the validity of fixed penalty notices using documentary evidence and any mitigating factors. 

Outcomes achieved include: 

• Withdrawal of a Warning Notice 
• Amendments to a Warning Notice  
• Non-publication of a Warning Notice