Enforcement: How to Avoid it and How to Respond if it Comes your Way.

Last month the Ridout Report looked at compliance reports and how to challenge them. Where CQC make adverse findings in compliance reviews, there are range of enforcement options open to CQC. This month, the Ridout Report looks at those options and how providers can challenge them.

CQC has published guidance which sets out how it should use its powers.

‘Setting the Bar’ is its guidance on whether or not regulatory action is warranted. The variables it relies on, quite sensibly, are the seriousness of concerns (minor, moderate and major) and the degree of confidence it has in a provider.

Given the perceived recent regulatory failings of CQC, providers can expect a greater emphasis on enforcement. Providers should ensure that they are not passive in the enforcement process and consider their position whenever CQC takes action. Some helpful points to consider include:

  • Be cautious about conceding CQC’s judgments in the hope that it will pacify CQC. If you think CQC has got it wrong, it is important to state that at the earliest opportunity.
  • Conversely, it may be best not to challenge improvement actions and compliance actions informally set by CQC in appropriate cases. A degree of insight may instil a degree of confidence that could avoid formal enforcement
  • Ridouts has however seen cases where CQC has found providers to be compliant with regulations but has nevertheless stated that it has ‘minor concerns’ and imposed improvement actions accordingly. Such ‘minor concerns’ should be robustly challenged on the ground that the provider was, on CQC’s own judgment, compliant with regulatory requirements.
  • Where providers comply with warning notices, the breach that led to the warning notice cannot subsequently be relied on in cancellation proceedings. Warning notices are real opportunities to wipe the slate clean and, whether or not the notice is challenged, providers should work hard to ensure the regulatory requirements are met.
  • When CQC issues a notice proposing to cancel registration (or a location), providers have the right to make written representations before the decision is finalised. Representations that concentrate on improvements since the notice was issued are far more likely to be effective than representations that challenge all the judgments of the report and fail to communicate insight or improvement although it is important to challenge CQC where their facts or judgments are wrong.
  • CQC has emergency powers to impose conditions without prior notice. Those conditions can include preventing further admissions or even cancelling a particular location. Providers need to be alert to this possibility when CQC highlight serious concerns and should seek legal advice immediately if such conditions are imposed.
  • CQC’s policy has a high emphasis on proportionality. There may therefore be scope for challenging high end enforcement when other options would have achieved compliance.
  • Providers with multiple locations, especially larger groups, should ensure that all enforcement action of any kind is reported to the Board as matter of course. We frequently find that problems that could and should have been nipped in the bud get out of control because progress is not supervised soon enough by senior management.
  • The earlier problems are identified and addressed, the less costly the intervention is likely to be.
  • The same applies in respect of operational and legal advice: the sooner the need for such advice is identified, the more effective and less costly it is likely to be. Providers who wait until a real crisis is upon them before seeking assistance are those who most often end up facing the largest bills.
  • The only sure way to avoid enforcement is through compliance. Rigorous quality monitoring is a key to operational success. Providers should be constantly checking that their quality monitoring systems are adequate and able to identify any shortfalls.

All the lawyers at Ridouts are experienced in advising on all matter of enforcement and are happy to have informal discussions with providers in the first instance.

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