CQC Consultation on their Code of practice on confidential personal information

The deadline for responding to CQC’s current consultation on their Code of Practice is midday on 19 February 2016.

What is the consultation about?

The consultation proposes revisions to CQC’s Code of Practice on confidential personal information (CPI) which it issued in 2010 and which governs that way in which CQC obtains, handles, uses and discloses such information.

Who will be affected by the proposed revisions to the Code?

The Code affects CQC’s interaction with all care home providers and governs the actions of CQC inspectors when accessing medical records and care records, as well as information that they receive from the public and service users about individual care homes. CQC will be obliged to follow the Code when dealing with CPI in relation to any organisation that it regulates.

Consultation questions

The consultation seeks responses to six sets of questions around the following areas:

• the test that CQC will apply when deciding whether they need to obtain CPI;
• the Code’s explanation of how CQC will exercise its statutory powers to:
o obtain CPI
o use CPI
o handle and store CPI
o disclose CPI

• how happy the person responding to the consultation would be for CQC to hold CPI about them or about a member of their family.

Purpose of the Code

It is CQC’s intention that the Code will act as a reference point for staff to ensure consistent practice throughout the regulator, inform and re-assure the public as to why and how CQC will handle CPI and provide a set of standards to which CQC can be held by care home providers and other interested parties. CPI is defined in the Health and Social Care Act 2008 and includes medical records, care records and information that a provider holds on its staff or on the care home’s owner.

The “necessity test”

The “necessity test” is at the centre of how CQC deal with CPI. It is a two part test:
1. inspectors must first consider whether dealing with the CPI is a “necessary step” to enable them to carry out the inspection

2. they must then consider whether dealing with CPI is necessary in the “overall public interest”. This requires the lead inspector to balance, for example, the interest of a service user’s privacy against the inspectors’ need to view that service user’s medical notes in order to properly carry out the inspection. In some cases, if the service user objects to CQC having access, it may be possible for the inspector to simply refer to another service user’s records in order to obtain a full picture of the quality of service being provided.

Obtaining copies of the inspectors’ handwritten notes of an inspection

Many care home owners and managers will have experienced the shock and anger of reading a draft CQC inspection report that does not seem to fairly reflect the service provided or the interactions and discussions with the inspectors at the time of the inspection. Apart from any notes of the inspection that the manager herself made of, for example, the feedback session following the inspection, an important source of evidence against which the content of the report can be assessed, is the inspectors’ own handwritten notes of the inspection. As legal advisers to many providers in the sector, we will request copies of the inspectors’ notes in appropriate cases and in most instances the inspectors will release them to us without a fuss. Such notes can prove invaluable in responding to the factual accuracy of the draft report or in determining whether to otherwise challenge CQC’s actions. Sometimes, however, an inspector will refuse to share this important evidence with us or the provider on the basis of ‘confidentiality’.

The consultation document refers, at page 29, to further CQC guidance relating to CPI, one of which is Guidance on Sharing Information. This document itself provides guidance to inspectors as to whether they should disclose notes of or evidence obtained during an inspection to the provider of the service inspected. The guidance states that inspectors should disclose such information. It also provides a number of examples where inspectors should refer the request internally to their Information Access Team before making a decision (e.g. where disclosure might identify a whistle-blower). In any case, it is open to the inspectors to disclose the notes with redactions of any information that ought lawfully not to be disclosed.

Respond to the consultation by midday on 19 February 2016

To review and respond to the consultation, please go to the following page on CQC’s website:http://www.cqc.org.uk/content/code-practice-confidential-personal-inform… and respond by midday on 19 February 2016. Responses can be submitted online from the link on CQC’s consultation page.

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