The CQC has been changing the way it works in response to the coronavirus pandemic. Routine inspections have been suspended and work has been focused on more urgent matters. However, their regulatory obligations have not fallen away.
Dr Kevin Cleary, Deputy Chief Inspector of Hospitals gave a public statement on the CQC’s website on 8 April 2020 which set out what the CQC was doing to ensure that the rights of certain groups of people are to be protected whilst the restrictions remain ongoing.
With Dr Cleary’s statement, the CQC published an Equality Impact Assessment entitled “CQC COVID-19 Regulatory Response”. This identifies three separate “impacts” of the response to the pandemic:
- Differential impacts of the COVID 19 pandemic on particular groups of people using health and adult social care services, for example where some equality groups have a higher risk if they contract COVID 19
- Impacts on equality and human rights of the way that providers of health and social care respond to the COVID 19 pandemic, both the way that providers provide care to people who contract COVID 19 and the impact on people using other services they provide
- Potential impacts of the way that CQC responds to the COVID 19 pandemic – both in relation to regulatory issues arising from COVID 19 and also our ability to carry out our usual functions, for example through CQC staff observing social distancing requirements in their work
The CQC has, quite rightly, identified that there may be particular categories of people who are most at risk of not receiving the right care and support and/or whose human rights are most at risk of violation because of the impact of COVID-19, and measures brought in to respond to it. It is particularly important that the regulator considers the impact on the most vulnerable – and on their human rights – in these unprecedented times, and is encouraging that they are seeking to do so.
The CQC has raised concerns that older people, disabled people, people in detention, those with dementia, people from black and minority ethnic groups, older people who are gay, lesbian, bisexual or transgender and pregnant women may be at disproportionate risk. The CQC identifies that for some or all of these groups, normal access to routine healthcare services may be hampered, their human rights are more likely to be violated, they are less likely to be able to access suitable mental health support and/or their ability to advocate may be reduced. Further, the CQC is concerned that the current situation may make it easier for “closed” cultures to develop.
Aside from the restrictions in place, and provider’s and the CQC’s various responses to them, there are also recent legislative developments which have the potential to have a significant impact on these groups. For example, the Coronavirus Act 2020 makes provision for the relaxing of requirements to detain people under the Mental Health Act and The Coronavirus Act 2020 (Commencement No. 2) Regulations 2020 allow for Local Authorities to derogate from their usual duties under the Care Act 2014.
The CQC proposes to take certain steps to try and protect these groups of people from adverse impacts which may arise from the COVID-19 response. Amongst other things, they propose that:
- Mental Health Act reviewers will be conducting reviews of patients detained under the Mental Health Act remotely. Site visits will still be carried out where concerns are identified.
- The CQC will focus on monitoring of services where there is more of a risk that “closed” cultures will develop, in light of the coronavirus restrictions and responses to them.
- The CQC will gather information, and regularly review, how the provision of health and social care services is impacting on certain identified “at risk” groups.
- The CQC will be actively seeking more feedback from service users, their advocates and families and will provide assistance to facilitate the giving of that feedback, particularly for those who have limited access to the internet or who may not be able to provide feedback unassisted. They will seek to provide more accessible information to those with communication needs.
- The CQC are developing further guidance for inspectors and providers on maintaining human rights in areas such as visitation and use of the Mental Capacity Act.
- CQC monitoring will focus on those most likely to be at risk, such as those with learning disabilities and autism, to ensure that they continue to receive the right care and support.
The CQC considers that its work will fall into 5 “workstreams” of Engagement; Organisational Readiness; Organisational Resilience; Regulatory Response and Intelligence and Data Collection. None of these appear ground-breaking, but it is at least comforting that the CQC accept that there is no one solution and that a multi-targeted approach will be required.
As the situation, and providers’ and the CQC’s response to it, develops, providers will need to be given guidance and assistance, and offered support from their regulator, to enable them to adapt in these unprecedented times and ensure that they know what is expected of them.
The CQC needs to ensure that providers understand how they can continue to meet their regulatory requirements during the pandemic and that they know how they can play their part in ensuring that vulnerable people receive the right care and support, and that their human rights are protected.
If providers have any concerns about or require advice on CQC matters or on developments in the sector during the pandemic, please contact Ridouts on 0207 317 0340.