Care Talk: Duplication of Regulation – A Guide for Frustrated Providers

Topics covered: Ridouts professional advice

Monday 9.00am: a Fire Safety Officer appears and asks to see your fire safety records.  Ten minutes later, a Contracts Officer arrives from the Local Authority asking to see care plans including Mental Capacity Assessments.  After another quarter of an hour, two CQC Inspectors arrive with a Pharmacy Inspector.  The Inspectors also want to look at care plans and the Pharmacist asks to see the MAR charts.  By 9.30, you are still trying to get residents ready for breakfast but staff are tied up with all the visitors.  A Manager from safeguarding phones you to ask for some documents about a referral you made months ago.  The residents begin to exhibit challenging behaviour and the CQC Inspectors hover and take notes like eager pupils.

Such is the stuff of nightmares but unfortunately, duplication of regulation presents a real problem for social care providers.  The most burdensome aspect of that duplication is between CQC and Local Authorities.  Many Local Authorities have devised contract monitoring methodologies that are comparable in detail to the Essential Standards of Quality and Safety and their Contract Officers visit far more frequently.

The problem is particularly acute when Local Authorities and CQC make conflicting requirements of providers.  For example, I was once approached by a provider in a state of utter despair.  The Local Authority had criticised care plans despite them having been approved in the latest CQC report.  Concerned about the possible imposition of a suspension on placements, the provider spent considerable time redrafting all the care plans.  When CQC visited, however, they were dissatisfied with the new plans and required them to be changed.  After having done so, the Local Authority turned up again and criticised the format that CQC had approved.  The provider was being pushed from pillar to post.

If you face similar problems, there are a range of strategies that you can employ to try to take control of a situation.  First, ensure that all communication is in writing.  If regulators or Local Authorities convey information orally, politely ask them if they could confirm it in writing to avoid misunderstandings.  If they fail to do so, send them an email of what you understood them to have said and ask them to correct anything if you have misunderstood them.  This will ensure that there is paper trail of any oppressive regulation or conflicting positions between different authorities.

Second, try once to resolve duplicating regulation at the ground level (for example, CQC inspectors and contract monitoring officers). If that does not resolve the issue, however, escalate the problem to higher up in the organisation (for example, the CQC Regional Director and the Local Authority Director of Social Services) without further delay.  Again, all of this should be in writing.  One approach at this stage may be to suggest a meeting at your premises.  Propose a date and ask the various authorities to ensure that all the relevant agencies attend.  Such a round table discussion can resolve matters faster than waiting for all parties to reply to emails.  At the end of any such meeting, ensure that any action points are agreed and circulate minutes after the meeting.  If any authorities persistently refuse to co-operate in your efforts to arrange a meeting, use the authorities’ complaints procedures.  You may also want to consider seeking specialist legal advice at this point.

As regards the bigger picture, the current government has committed itself to reducing the burden of regulation on business.  The Better Regulation Executive (BRE), part of the Department for Business, Innovation and Skills, exists solely for that purpose.  You may want to consider contacting BRE (either directly or through a care association) to let them know how big a problem duplication of regulation is for you and the sector more broadly.  Issues like this tend to only be resolved on a national level when the profile of the problem is built up over time.  The more voices that speak out, the more likely it is that the Government will eventually listen.

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