An Englishman’s home is his castle! Or so it is said.
A care provider’s home is their citadel. Without permission, no one can insist on entering absent the owner’s consent, whoever they may be, except with a warrant for a specified purpose in the case of the Police and on any ground, the CQC .
CQC has a right to enter, inspect and carry out other specified activities in any care home or premises which they reasonably suspect to be carrying out care or regulated activities. Anyone carrying appropriate authorising ID must be admitted.
How is this affected by the COVID pandemic crisis? Unusual and previously unseen restriction on admissions to care homes are being mandated by Government or strongly recommended by advisers including Ridouts. Health and care obligations to residents and health and safety obligations to staff and visitors absolutely require careful restrictions on all those who enter a care home and, if in doubt, the recommendation is to exclude.
How does this sit with obligations to and the rights of CQC inspectors? Clearly it is reasonable to exclude visitors who do not accept following basic hygiene, PPE and other infection control precautions as to safety e.g. a very recent negative COVID-19 test.
Should CQC inspectors be regarded or treated differently? Logic suggests (resident and staff safety being the issue) that there should be no difference to CQC staff.
CQC has stated that it will not be arranging for their inspectors to have recent negative COVID-19 tests or to carry proof of negative testing. This strikes one as very strange, as inspectors might be the very cause of risk to vulnerable people in care homes.
CQC says that this is not a necessary requirement as inspectors will not come into direct contact with others. That is bizarre and cannot be correct. Still less can it be guaranteed. Inspections are dynamic and inspectors will follow their instincts as well as their protocols. There must be just the same risk of infection for inspectors as any other visitor.
However, only inspectors can demand entry and refusing or ‘obstructing’ is a criminal offence. What is the provider to do?
There might be no defence to a claim from an injured and infected person or, their family, in the event of a death, simply on the basis that entry was required.
The right of entry is not actually absolute (S 63[7]) of the Health and Social Care Act provides:
‘a person who without reasonable excuse – (a) Obstructs the exercise of a power conferred by section 62 or this section, or (b) Fails to comply with a requirement imposed under this section, is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale’
NB: 1. Applies to anyone, not just owner or manager
- Powers are the inspection and associated rights
- The maximum fine is £2500 (probably for each inspection, as opposed to each person obstructed)
Such powers have been established since the beginning of inspections. However the offence is to obstruct or fail to comply without reasonable excuse. The alleged offenders will have to raise the excuse but CQC will have to prove that it is not reasonable. So, would required proof that any CQC inspectors have a negative COVID-19 test confirmed not more than 48 hours (say) before inspection be a sufficient excuse? Clearly that would be a credible excuse. Could the CQC prove that it was unreasonable? We would suggest not. The requirement would be the same for any visitor.
The risk to residents and staff would be no less because the visitor was an inspector. Tests are widely and easily available and certainly would be available to a statutory regulator.
Our view is that someone taking such a stand would have a realistic prospect of a successful defence. Certainly CQC’s current explanation for non-testing stretches credibility.
How can the position be improved?
- If you decide to take this action to restrict entry write to the CQC copied to all relevant CQC personnel informing them of the steps that you are taking and submit the evidence you will expect CQC inspectors to provide.
- If there are areas which are safe to access without risking staff and residents make that clear and the process for gaining access to the areas.
- Offer to supply relevant documentation to facilitate a virtual inspection – much of CQC’s inspection methodology is paper based.
- Invite a response with any objection and any suggestions to accommodate your reasonable position.
- Inform and train staff who are at first point of contact what you have decided and what steps they are required to take.
- Make sure that all involved make careful contemporary notes of any interaction.
- Try to make sure that any discussions take place outside the buildings.
- Above all remain open minded to any suggestions to effect a compromise which works for the inspectors and guarantees that you have maintained suitable protection for your residents and staff.
Following these simple steps should give a very good chance of avoiding prosecution whilst protecting those to whom you have a duty of care.
I have never had a case of prosecution for inspection obstruction but I recommend that all are alert and objectively consider how to manage these competing priorities.
