Caring Times: Urgent enforcement action by CQC could be entering a new realm

Providers need to be aware of a little known enforcement power which CQC can rely upon whenever it believes that service users will or may be exposed to unnecessary and serious harm to their safety and welfare if it does not act immediately.  Under section 31 of the Health and Social Care Act 2008, CQC can serve a Notice of Decision imposing, varying or removing conditions on an urgent basis which takes effect immediately.

This enforcement power has significant implications for providers with multiple locations where each location is identified as a separate condition under the overall registration. It means that CQC can remove a location from the registration by simply serving a Notice of Decision on an urgent basis. This has the effect of closing the home as it is then unlawful to carry on the service. There is no need for CQC to make an application to a magistrate, as was previously the case under the previous legislation, the Care Standards Act 2000. There is a right of appeal to the First-tier Tribunal which will be fast tracked with a hearing coming on within a matter of a few weeks but by that stage all the service users will have been removed from the home and the provider may not have the resources to challenge the decision.

The first reported instance of CQC using this power came out in a press release on 12 August 2011 in relation to a care provider in Kent with 6 homes. The press release states that in June 2011 served a Notice of Decision under section 31 of the Health and Social Care Act 2008, adding “this means that that this location is no longer registered to care for people and by law cannot continue as a care home.”

It remains to be seen how frequently this power is used by CQC. The concern from a human rights point of view is that a provider has no opportunity to challenge the decision in a legal setting before it takes effect. Under the old system, the regulator normally gave the provider notice of an application to a magistrate for an urgent order cancelling a home’s registration. The provider was then able (albeit at short notice) to attend the hearing with a legal representative and put forward a case as to why the Order should not be granted.  CQC will have to be very careful how they exercise the new power given the draconian consequences for the provider, staff and the residents.

The test under the new regulatory framework for taking urgent enforcement action of this nature is also significantly lower than was previously the case. Under the Care Standards Act, the regulator had to convince a magistrate that there would be a serious risk to life, health or well-being if the Order were not granted. Under the new legislation, all the regulator has to do is indicate in its reasons with the Notice that “any person will or may be exposed to the risk of harm.” In practice, CQC should only be exercising this power in the most serious cases and that appears to be confirmed by the CQC Enforcement Policy which talks of its use “whenever it believes that service users will or may be exposed to unnecessary and serious harm to their safety and welfare if CQC does not act immediately.”

The fact that CQC is now using this power is a significant development which all providers need to be aware of. The risk is that it comes to be used far more frequently than the old urgent procedure given the ease with which it can be exercised: simply by serving a Notice of Decision rather than by making an application to a magistrate for an Order. Where enforcement action is flagged up by CQC, providers need to take note of the possibility that this urgent power might be exercised. Timely legal advice will be essential whenever CQC identifies what it perceives to be serious harm to the safety and welfare of service users.

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