This week, CQC published its response to its consultation on changes to its proposals for the Judgement Framework and Enforcement Policy. Alongside that, CQC published new versions of each of the documents which include significant changes in the way CQC exercises its powers. This article explores the changes and what they mean for providers.
The proposals for change were made in an atmosphere of perceived regulatory failures by CQC including a dramatic fall in inspections during the re-registration process and the Winterbourne View and the Mid-Staffordshire scandals. It is not surprising, therefore, that the emphasis of the changes is to return to regular inspections, increase enforcement and move away from self-regulation.
Provider Compliance Assessments (PCAs) will no longer be requested as a matter of course before inspections. PCAs are self-assessments of how providers comply with the regulatory requirements. Although they will no longer be required, CQC suggests that providers may still wish to use the tool for quality assurance. That is an extremely useful suggestion. All providers are required to have adequate quality assurance systems and it is very sensible to use a tool which CQC has itself designed. The tool is designed around the Essential Standards and so will help providers to ensure that they can evidence compliance when the inspector calls. Providers can find the PCA tool on the CQC website.
CQC will now inspect most services on an annual basis. Most inspections will focus on just five Outcomes, one from each of the five Outcome Chapters CQC uses on its website – (confusingly, there are six, not five, Chapters in the statutory Essential Standards and they have different titles). CQC retains the right to inspect a greater number of Outcomes, and where CQC has information which raises concerns about a particular Outcome at a particular location, or where concerns arise in the course of an inspection, it is to be expected that CQC will look at that Outcome. But overall, it seems that inspections will be more focussed and less comprehensive.
CQC recognised that many respondents felt very strongly against its proposal that CQC will focus on non-compliance rather than on compliance and has somewhat diluted that proposal. CQC will focus on identifying non-compliance, but where it sees compliance it will describe it to ensure that it is providing a balanced view when reporting its findings. That change of heart is of course to be welcomed by the sector. Reporting good practice helps to promote such practice across the sector and is important information for stakeholders to use when making decisions.
Where non-compliance is found, CQC will go on to consider the level of impact on service users. That changes the methodology previously used of using likelihood and impact to assess whether or not there was a breach in the first place. The change, though subtle, is logical and obviously correct.
CQC has adopted a ‘regulatory response escalator’ to determine what action to take in response to regulatory breaches. As it must, CQC retains discretion as to what sanctions (if any) to apply in particular cases, but the presumption will be to escalate enforcement where compliance is not achieved.
In most cases, providers can expect that non-compliance will lead to a warning notice in the first instance. It is disappointing that CQC’s response to the publication states that ‘it is important to note that the representation process for warning notices relates to the publication of the notice and not the judgment made within it.’ CQC is wrong about this. We have repeatedly informed CQC that the relevant provisions in the Health and Social Care Act 2008 and regulations explicitly state that CQC must consider representations about ‘matters relating to the matters dealt with in the notice’ and are not therefore limited to whether or not the notice should be published. Even if this was not explicitly stated in the legislation, CQC would in any event have a public law duty to consider the views of providers as a matter of fairness in the public law sense. It is baffling why CQC persists in taking this obviously wrong line.
If CQC is not satisfied that the provider has complied following the Notice, progressively higher end enforcement is likely to follow. This is a change from CQC’s historical approach that allowed for multiple use of low end enforcement before finally resorting to more serious sanctions. The sector can therefore expect more high end enforcement. Historically, CQC has tended to rely on its cancellation powers rather than its criminal sanctions, but it would not be surprising if CQC began to use fixed penalty notices and formal cautions more. Prosecutions may continue to be relatively rare as they are costly for CQC and subject the regulator to proving offences beyond reasonable doubt. Overall, providers should prepare themselves that CQC is likely to seem a lot less patient in securing compliance than it has done historically. This may have mixed results for the sector. Of course, it is right that poor providers are weeded out of the sector, but it is inherently difficult to ensure consistency and proportionality by such a large regulator.
It may take a while to see how these changes pan out for the sector. Providers who have any concerns about how CQC is applying the new methodologies should raise the issues with ECCA and seek legal advice where appropriate.