As part of its 2021 strategy, the CQC has published a consultation which promises a significant shift in its approach to inspections and ratings.
This article does not explore these proposals nor the merits of them in detail (although, for future reference we do think there will be a lot to say) but in short, the CQC proposes to adopt a more flexible approach, as summarised below. If adopted, this could have a wide-ranging impact on inspection, reporting and ratings, and also on sider enforcement and registrations activity.
Inspections – a move away from the traditional (pre-Covid) routine timetables for inspection and from comprehensive inspections, with less on-site activity, more off-site “intelligence” gathering and more weight being paid to the “voices” of people who use or work within, or with, a service. Inspections would be prompted predominantly by risk (and/or or significant change and/or new services which required inspection on registration).
Ratings – a more flexible approach to ratings so that they can be updated and amended, so Providers’ ratings can be revisited more dynamically (than the current “comprehensive” or “focused” inspection rating process).
Inspection Reports – a move towards a simpler inspection reporting process with shorter reports being published in shorter timescales.
In our experience, current inspection activity is inconsistent in approach and inspection teams have struggled to grapple with some of the more specialised, or unusual services in the sector. Similarly, inspection reports underpinning ratings are highly variable in quality, factual accuracy and the judgments reached in them. “Current” ratings are, in many cases, simply not an accurate up to date picture of a service, and again, there is significant inconsistency with how inspectors apply ratings, yet providers are still highly dependent on them to achieve commercial success, and in some cases to maintain financial viability at all.
Clearly change is necessary and providers may – aside from the timing – welcome and embrace it. Positive regulatory change could certainly help take some of the pressures off the sector in the medium term and facilitate a better regulatory landscape in the longer term.
It will be necessary for the CQC to revisit its own processes, systems and procedures, and the guidance it provides to the sector and to the public and this is an opportunity for them to get it right, or at least improve. We welcome change, but only where that change is for the better; change for changes’ sake is not the answer. The need for a better strategy direction also needs to be balanced against the inevitable disruption and uncertainty for providers, which tends to be a feature in any significant strategy shift or reform, particularly in the context of ongoing pandemic.
To this end, whether the CQC adopts the proposals or not, they should hold themselves to the same standards they set for others when they are setting their 2021 strategy. They must ensure that they properly account for the impact of strategy reform on providers, and that it is very carefully planned out, and clearly communicated to the sector in good time before it comes into place. Critically, the CQC must draw on lessons learned from the many flaws of the current approach. They need to be more open and transparent with providers about what the changes will mean for them, and what will be expected of them in future. Whatever comes with the new strategy, the CQC must ensure that it can be more transparent, accountable and consistent than it is currently.
The message behind the proposals seems to be coming from the right place – the CQC suggest they are trying to take pressure off the sector, to be more supportive of providers, and to improve public understanding in and confidence of the sector (and its regulator). These are all to be championed in theory, but can the CQC actually achieve this in practice? We hope so, but are not entirely convinced and await further updates on the proposals (and the sectors’ response) with interest.
So far, the consultation lacks enough detail in of itself for us to know exactly what the CQC have in mind. The ESF and the TMA (i.e. the temporary frameworks in place during the Covid pandemic) may have given us a snapshot into the future but there is much we do not yet know. We suspect there will be significant practical and legal questions arising from the current proposals which will become much clearer as and when the details are fleshed out. There would, for example, be real cause for concern if the CQC’s proposals to build in more flexibility came at the expense of certainty and consistency for Providers, or that a change in approach to ratings came at the expense of legitimate and proper methods to challenge rating decisions, or to question the CQC’s activity (when there is good cause to do so) in any meaningful fashion.
In the meantime, the law is still the law. That has not yet changed and is unlikely to do so for the foreseeable future. Providers will need to continue to:
- Be inspection ready at all times. An inspection could come at any time, and probably at the worst time. Most inspections are currently being carried out either due to pre-existing concerns, or in response to whistle-blowing.
- Be compliant. Providers should know their legal and regulatory requirements, and meet them. They should keep compliance under review, keep on top of changes in the law and in guidance. Do not, however, be a slave to guidance; it is important, but it is not the law.
- Respond to criticism (where it is warranted). If providers don’t respond to unreasonable or disproportionate criticism, what the CQC say will be taken as given. It can be important from a long term reputational (and provider record) perspective, as well as in the short term, to get credible objections on record.
- Stand up for yourselves (where it is warranted). The CQC can and do sometimes get things wrong and if no-one takes issue with this, poor practice can quickly embed into a wider regulatory approach. Providers can (and should) inform the CQC when they are not doing things right. Otherwise, who will hold them accountable for poor decisions and how will they ever learn?
- Keep aware of developments. What is happening in the sector will affect the CQC’s approach to strategy. Providers can help themselves by keeping abreast of developments, and understanding how pressures the CQC may be under may affect the regulator-provider relationship. Services of a type which are attracting a lot of public attention will often come under increased scrutiny, for example.
Well-performing providers should be well equipped to deal with change and development in their sector and are likely to be in a good place to adapt to whatever the CQC decides on in its new strategy. That is not to say that they will like what the CQC have proposed, or that it not have a commercial impact. We therefore do encourage providers to read the consultation (and others on the CQC’s new strategy), and get involved where they can, or feel that the proposed approach would not be good for their business.
Consultations might seem the last thing providers want to get involved with a pandemic going on, but this strategy will be in place for years to come. If providers disagree with the CQC’s proposals, now is the time to say so, or the opportunity to influence sensible changes, and bring credible challenges against the regulator, may be lost.
If providers require advice or assistance on CQC engagement, or advice on regulatory matters more generally, please contact Ridouts Professional Services Ltd on 0207 317 0340 or request a call back on our website.