In its strategy for 2016/2021 CQC undertook to continue to use the full range of its enforcement powers, such as restrictions or closure of services, fixed penalty notices or prosecution where they find poor care below the Fundamental Standards.
Its business plan for 2017/2018 identified “the proportion of newly registered providers where we take a regulatory response on inspection” as a measure of the success of their intelligence driven approach to regulation. These documents suggested an intention to take a tough approach to enforcement.
At Ridouts we have noticed a rise in enforcement action, including an eagerness to impose conditions of registration. In particular, we have noticed an increase in the imposition of positive conditions, i.e. those that require providers to take some sort of positive action. Examples include requirements to send monthly action plans to CQC or to submit monthly information regarding statistics around late care calls.
In order to impose, vary or modify conditions of registration, CQC must issue a notice to the provider. This can either be served under its general powers by way of a Notice of Proposal (“NOP”) or, if CQC believes that unless it takes prompt action any person will or may be exposed to the risk of harm, CQC can use its urgent procedures by issuing an urgent Notice of Decision (“NOD”).
If an urgent NOD is issued, the new condition will take effect immediately from the date the NOD is served on the Provider. Providers have 28 days to appeal to the Tribunal against any changes to conditions imposed by an urgent NOD and any appeal will be subject to the ‘fast-track’ arrangements. There have been cases where Providers have successfully challenged the imposition of urgent conditions by CQC in circumstances where the Tribunal disagreed that the evidence relied upon by CQC amounted to an extreme level of risk which justified such urgent action.
If CQC seeks to impose a condition via the non-urgent method of issuing a NOP, the NOP will set out the proposed change(s) to the condition(s) of registration including the reasons for the change. The provider then has 28 days to submit representations to CQC challenging the NOP. CQC will then issue a NOD indicating whether or not it accepts the providers challenge. If the NOD indicates that CQC does not accept the challenge and the provider continues to disagree with CQC, they will then have to appeal to the Tribunal. Unlike urgent NODs, NOPs and NODs issued through the general procedures will not take effect until the end of a failed appeal to the Tribunal should a provider choose to challenge the NOP and NOD.
It is an offence to fail to comply with conditions of registration without a reasonable excuse. Providers that don’t comply can be subject to a substantial fine. CQC may also feel the necessity to take further enforcement action in response to breaches of conditions which can include prosecution.
On the face of it, some of the positive conditions may not seem unduly onerous and a Provider may not be inclined to challenge them. However, if a condition is not measurable, is open ended or is unreasonable, it should be challenged. If not, the condition could remain indefinitely on a provider’s registration unless they apply to CQC to have it removed. It is not guaranteed that such an application will be accepted. If CQC refuses an application to have a condition removed this will trigger a NOP process again. Therefore, if there is no end date to a condition the provider will be required to comply with it indefinitely (or until it is removed from the registration). This could be overly burdensome and increase the risk of prosecution for non-compliance. This ought to be an important consideration when deciding whether to challenge the imposition of a condition
Furthermore, it could be argued that, in the case of certain conditions, CQC is essentially elevating the Fundamental Standards into conditions of registration, a failure to comply with which could lead to a fine or prosecution. This method is highly questionable, particularly as some Fundamental Standards do not give rise to an offence in their own right (for example, staffing and the good governance practices under regulation 17(2)).
CQC must employ a proper assessment of risk when deciding whether to impose a condition and consider whether a breach leading to a potential prosecution or fine is the appropriate and proportionate response. We would argue that, in a number of cases where CQC are seeking to impose conditions, the more appropriate enforcement route, if enforcement is justified at all, would be via a warning notice or even by way of a voluntary undertaking. This is particularly important as the potential fine for a breach of condition is now unlimited.
Accordingly, it is important that, if a Provider does not agree with a proposed change to their conditions of registration, they should utilise the appropriate appeals mechanisms for challenge.