Do CQC’s enforcement procedures Require Improvement?

CQC has published its annual report and accounts for 2018/2019. This includes their performance summary and analysis benchmarked against its four strategic priorities to:

  1. Encourage improvement, innovation and sustainability in care
  2. Deliver an intelligence-driven approach to regulation
  3. Promote a single shared view of quality
  4. Improve our efficiency and effectiveness

In respect of priority one, 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 care below the standards.

The annual report records good progress towards this priority, reporting that, in 2018/2019, 1089 Warning Notices were issued, as well as 906 civil actions and 211 criminal actions. The figures for civil and criminal actions in 2017/2018 were 781 and 159 respectively.

This reflects what we have seen at Ridouts where have noticed an alarming rise in the number of Providers seeking advice in relation to CQC civil and criminal enforcement.

In particular there seems to have been an upsurge in the number of Notices of Proposal to impose conditions on Registration and/or cancel registration and, worryingly from a Provider perspective, an increase in CQC moving to adopt notices of proposal without re-inspection, even if substantial evidence has been supplied by the Provider about improvements.

In the usual course of events, when a Provider receives a Notice of Proposal to cancel their registration, they have a statutory period of 28 days in which to submit representations to CQC. These representations can address all aspects of the issues referred to in the Notice, including any errors in the factual basis on which the notice has been issued as well as details of the improvements that have been made to remedy the issues referred to in the Notice. This is extremely important for Providers to bear in mind as it is now a well-established principle that the decision maker at CQC who comes to consider the representations must consider the position of the service at the time of making their decision and not the position at the time the notice was issued.

Providers therefore have the 28 day period to make and embed improvements at the service to address the issues highlighted in the notice and should supply evidence to CQC of this with their representations.

In line with its commitment to encourage improvement and to improve efficiency and effectiveness, CQC, ought to carefully review the evidence of improvements supplied with representations and in most if not all cases we would say that a re-inspection would be indicated in order for CQC to assure themselves that the appropriate improvements have been made.

However, unfortunately for Providers, we are seeing a real trend of CQC simply moving to adopt the Notice of Proposal, by taking the draconian step of issuing a Notice of Decision that the cancellation decision is to take effect without re-inspecting the service. This means that the Provider is left with no option but to appeal against that decision, within 28 days, to the Care Standards Tribunal.

We have seen this happen in a number of cases, even those where the Provider has supplied evidence of profound changes at the service following receipt of a NoP like whole new management teams, comprehensive consultancy support and completed action plans. Notwithstanding this CQC have not re-inspected, proceeded to issue a Notice of Decision and forced these providers to begin the costly (for all parties) process of beginning and Appeal to the Care Standards Tribunal. This is deeply unfair for the Provider and is certainly not an effective use of public funds.

In terms of its strategic Priority two CQC aims to “use information from the public and providers more effectively to target our resources where the risk to the quality of care is greatest and to check where quality is improving……”

We would suggest that, where CQC has been supplied with clear and detailed evidence of improvement at a service that had previously flagged concerns about risk, these are precisely the circumstances when CQC ought to target their resources to prompt a speedy re-inspection.

As CQC itself recognises, in the context of its aspirations towards becoming an intelligence driven organisation, more effectively targeting their inspections will help to ensure enforcement action is decisive which will ultimately help ensure value for money.

Failure to do so is a false economy. The practical effect of this failure to re-inspect timeously is that the Provider has to lodge and appeal and CQC has to instruct lawyers to respond to it and begin the Tribunal process which is costly for the Provider and for CQC and time consuming for all parties including the First Tier Tribunal. More often than not what then happens is, the Provider spends time preparing and submitting an appeal, often diverting care and management staff time to assist with this. The CQC then respond to it either asking for more time to re-inspect or to have the case put on hold to allow a further inspection to take place. If, as the NoP reps suggest, a re-inspection confirms the improvements, which it invariably does, the case is then dealt with by the Tribunal way of a consent order. However this process has wasted valuable time and resources of the Provider, the CQC and the Tribunal which could have been avoided by a more timely re-inspection.

CQC recognise that they:

have a clear obligation to providers that fund most of our work through their fees – in 2018/19 the fees raised largely covered our costs on the activities for which we charge providers. We want to make sure that we do all we can to protect people from poor care and encourage improvement, while offering value for money, and being an efficient and effective regulator.”

CQC’s current approach does not reflect that of an efficient and effective regulator and most certainly requires improvement.

If you are a Provider experiencing similar problems and require any advice on the process, please don’t hesitate to contact us.