In recent months, we have seen an increasing number of notices of proposal to cancel registrations (or, for providers with multiple locations, notices to vary conditions to remove locations). That comes as no surprise to us. Since April 2012, CQC’s new enforcement policy has included a regulatory response escalator which has meant that providers should expect higher end enforcement if compliance is not achieved after a warning notice. CQC has also faced a barrage of criticism in the last couple of years and is under pressure to improve its effectiveness. One way for CQC to do that is to come down hard on what it judges to be failing providers. Finally, both the Chair and the Chief Executive have resigned in recent months in consequence of a wide range of criticism. The new Chief Executive, David Behan, will want to make a quick impact.
The prospect of cancelation can be daunting in the extreme. Once registration is lost, it is a criminal offence to carry on a regulated activity. Fortunately, there is every reason to be optimistic for providers who act quickly and decisively. The key is to understand the process. The steps for cancellation are as follows:
- CQC issues a notice of proposal to cancel the registration.
- The provider has 28 days to make representations.
- If provider does not make representations within that period, CQC will almost certainly cancel the registration at the end of the 28 day period.
- If the provider does make representations, CQC must consider them before making a final decision. Crucially, CQC must make its decision on the basis of the facts at the time of the decision, not the time of the initial proposal.
- CQC decides either (1) to adopt the proposal and proceed with the cancelation or (2) not adopt it in which case the process ends.
- If CQC decides to adopt the proposal, it issues a notice of decision.
- The provider has 28 days within which to appeal to a tribunal.
- If the provider does not appeal, the cancelation takes effect after the expiry of 28 days.
- If the provider does appeal, the decision does not take effect until the appeal process has run its course. This typically takes 9 – 12 months.
- If the matter goes to a trial, the tribunal must make its decision on the basis of the facts at the time of the hearing.
In practice, the process means that providers who submit representations (and if those fail, lodge an appeal) can ensure that the cancelation does not take effect for many months. Moreover, if they use that time to improve the service, there is every prospect that the appeal will be allowed or not contested as the tribunal must take into account recent improvements when it makes its decision.
The first crucial point, then, is to act within the time limit. The timetable is fixed by statute and it will very difficult, if not impossible, to persuade CQC to give extensions.
The next point is the approach to drafting representations. Cancellations are usually the final stop after a long journey of non-compliance and enforcement. Providers who choose to contest all allegations in the notice of proposal and show little insight are unlikely to succeed. In contrast, providers who build confidence by accepting shortfalls and providing a credible route to compliance are more likely to win over CQC or if necessary the tribunal.
In summary, a notice of proposal to cancel a location’s registration need not lead to despair. Providers who act quickly and seek help in drafting representations may find that the notice is not the sunset of their business, but rather a new dawn.