It is a regular feature of CQC reports that a provider is said to be in breach of the Regulations which providers are required to observe.
The principal regulations are the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the Regulations”); the so-called Fundamental Standards. This is a serious matter. CQC inspectors have the right to express an opinion as to a breach of Regulations, but have no right to determine a “breach” which involves an allegation that a criminal offence has been committed. Only the Courts can determine whether there has been such a breach.
This is doubly important because a finding of breach operates as an automatic limiter on the CQC rating to ‘Requires Improvement’ unless the CQC decide to exercise discretion to waive that limitation. To commissioners, the media, and the public, ‘Requires Improvement’ signifies significant failures in the service rather than, CQC’s own interpretation of – ‘not consistently ‘good’’. Many public commissioners and private customers will regard ‘Requires Improvement’ as either a bar or at least a disincentive to purchase.
A regulatory breach requires proof of a failure which justifies a criminal conviction which it is in the public interest to stigmatise. An inspector’s opinion that a provider has failed to comply with standards in some respect should not be characterised as a breach unless the evidence satisfies the prosecution test – likely to result in conviction and it is in the public interest to prosecute.
It is of concern that inspection reports assert regulatory breaches as a matter of routine where there is clearly no intention whatsoever to consider prosecution. It would be proper for the CQC to temper its language to be lawful and fair.
It is of even more concern where the CQC mischaracterise regulatory breaches as matters which could not, on any reading, be considered to be a regulatory breach. We see this frequently with the mischaracterising as breaches of Regulation 17 of the Regulations headed as ‘Good Governance’ (Regulation 17 is set out at here).
In its headline description, Regulation 17(1) of the Regulation provides:
“Systems or processes must be established and operated effectively to ensure compliance…” This should be interpreted as a service requiring a system or process which is effectively managed. However, far too frequently we see the following characterised as a breach of governance:
- Failures which the CQC only discovers from issues being highlighted in the providers own detailed audit and management processes; and
- Circumstances where the failure or omission is a matter of opinion from the inspector, often speculative, upon issues which can be the subject of genuine disagreement on matters of practice.
There is no reason why the individual inspector’s opinion should trump that of an experienced operator – let alone to the extent that such difference constitutes criminal behaviour. We have seen this so frequently that we surmise that inspectors, wishing to trigger the rating limiter, use the Regulation 17 option as a default position in the absence of evidence identifying a particular breach.
A good audit and management system which identifies faults (no system can catch everything that may occur to the imagination of an individual) cannot be characterised as a criminal breach.
Regulation 17 is an important provision to ensure that modern care businesses have effective management and system controls. It is about sanctioning those who leave little or no systems and not picking holes in good robust systems. The fact that a governance system identifies a failing demonstrates that there is an effective system in place. It is then for the CQC to judge whether the failing is so significant as to justify action of a type including enforcement. The breach should only be afforded under the correct Regulation and then only if it meets the prosecution test.
There are other ways for the CQC to address the perceived issues in a proportionate manner. For example, providing suggestions, offering advice or recommendations. To disproportionately jump to enforcement and a limiter on rating is simply wrong.
Any provider alleged to be in regulatory breach of Regulation 17 should review the allegation carefully against the wording of Regulation 17 and if concerned take advice and challenge. The consequences of a misdirected reduction in rating are commercially very grave. The impotent Rating Review process is most unlikely to provide any real remedy. The mischaracterisation of a regulatory breach is unlawful and could form a strong case for judicial review given the clear adverse commercial consequences.
At Ridouts we are experienced at presenting such challenges and we would be pleased to discuss all the circumstances with you.