Over recent months we have noticed an increase in Providers being criticised by the CQC in relation to compliance with regulatory requirements related to staff recruitment records. This can lead to regulatory breaches being referenced in inspection reports which can limit a Provider’s CQC rating.
What do the Regulations say?
Regulation 19 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the “Regulations”) requires registered providers to take specified steps during recruitment to ensure they have fit and proper persons employed at their service. It states that persons employed for the purposes of carrying on a regulated activity must:
- Be of good character;
- Have the qualifications, competence, skills and experience which are necessary for the work to be performed by them; and
- Be able by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the work for which they are employed.
Providers are expected to have robust recruitment procedures in place and to take appropriate action should a person employed no longer be considered suitable for their role. This includes informing the relevant regulator should the person employed be a registered professional.
Regulation 19 requires Providers to ensure specified information is available in relation to each person employed at their service. The majority of this information is set out in Schedule 3 of the Regulations which states Providers are required to hold the following information in relation to persons employed:
- Proof of identity including a recent photograph;
- Where required, a copy of a criminal record certificate together with relevant information related to SOVA 2006;
- Where required, a copy of an enhanced criminal record certificate together with, where applicable, suitability information relating to children or vulnerable adults;
- Satisfactory evidence of conduct in previous employment concerned with the provision of services relating to health or social care, or children or vulnerable adults (i.e. references from past employers);
- Where someone has been previously employed in a position whose duties involved work with children or vulnerable adults, satisfactory verification, so far as reasonably practicable, of the reason why their employment in that position ended;
- Satisfactory documentary evidence of any qualification relevant to the duties for which the person is employed or appointed to perform (e.g. training certificates, nurse PIN numbers etc);
- A full employment history together with a satisfactory written explanation of any gaps in employment; and
- Satisfactory information about any physical or mental health conditions which are relevant to their capability, after reasonable adjustments are made, to properly perform tasks that are intrinsic to their employment.
All schedule 3 information must be confirmed before an individual is employed.
What is the impact of non-compliance?
Employing unfit people or continuing to allow unfit people to stay in a role may lead the CQC to question the fitness of a Provider. The CQC cannot prosecute for a breach of Regulation 19 but it can take regulatory action including requiring a report of actions, the issuance of a warning notice or they may rely on a regulation 19 breach (usually alongside other breaches) to support more severe enforcement action including amending conditions of registration or cancelling registration.
Reference to a regulatory breach in an inspection report can impact the rating awarded to a Provider. According to the CQC’s current published guidance on its overall location ratings principles, the overall rating of a service cannot be better than requires improvement if there is a breach of regulation. The individual rating for the relevant key question (likely to be Safe in this instance) will also be no higher than Requires Improvement. While there should be an element of discretion applied to these rules, in practice the CQC has been seen to take a blanket approach to ratings awarded in light of regulatory breaches.
What does the CQC expect?
In our experience, unfortunately there is no clear consistency between inspectors as to what steps are considered compliant with the Regulations. While some matters are pretty black and white (for example ensuring you have proof of ID and have obtained evidence of qualifications) others are open to interpretation, for example:
- Satisfactory evidence of conduct in previous relevant employment (point 4 above) – we have increasingly seen some inspectors suggesting that providers should seek references from all past employers within the sector. While ideally that would be great, it is not always practicable and, in any event, the vast majority of references simply refer to dates of employment with no further comment on the person’s performance in their role. As long as a Provider can demonstrate that they have received at least two references from recent previous employers and have no concerns about the information provided, this should be considered satisfactory to meet the requirement.
- A full employment history (point 7 above) – we have noted some providers have policies that state they collect a set number of years of employment history e.g. going back 10 years. While this may have been standard practice for a number of years, some CQC inspectors have criticized providers when coming across these types of policies. The CQC stance appears to be that a full employment history should date back to the time the employee was in full time compulsory education.
- Satisfactory verification of the reason a person left their employment (point 5 above) – This requirement is caveated with ‘so far as reasonably practicable’. We have noted some inspectors interpreting this as an absolute requirement. However, if a provider has made a genuine attempt to contact a previous employer to gain verification but has not received a response, this should be considered satisfactory.
It is worth noting that under the Regulation ‘satisfactory’ is defined as “satisfactory in the opinion of the Commission.” It therefore can seem difficult to challenge criticisms from the CQC that a provider has not done enough to ensure compliance. However, as long as a Provider can clearly demonstrate the steps they have taken this should at the very least ensure they have an arguable case.
What can providers do to help demonstrate compliance?
Clear documentation is key to demonstrating compliance with the Regulation. Providers need to ensure they have robust systems in place to demonstrate they have considered each of the regulatory requirements. A tick box list on the front of each staff members file is an easy way of demonstrating whether each of the requirements have been fulfilled. Keeping a written record of the provider’s thought process when deciding whether something is satisfactory is also highly recommended. This can help fend off any potential criticism by evidencing that you have properly considered the matter.
For example, if a staff members’ reference is not wholly positive or neutral but the provider remains confident that the person would be suitable for the role the reasoning for this should be documented. If a Provider has attempted to contact a past employer to gain information on why they left but has not received a response, the attempted contact should be recorded. Demonstrating suitable steps have been taken to gather relevant information can assist in allaying any concerns the CQC may have in relation to a provider’s recruitment practices.
Ensuring compliance with Regulation 19 should be relatively straight forwards but many Providers have fallen short of the CQC’s expectations as a result of their record keeping practices. Providers are advised to review their current systems and processes to ensure they are clear and robust to help avoid unnecessary criticism.
For advice and support in responding to an inspection report or any enforcement action taken by CQC, contact Ridouts at firstname.lastname@example.org and 0207 317 0340.