Where police, prosecutors and criminal courts rely on a defendant’s criminal history to support its prosecution, a regulator places the same reliance on a provider or professional individuals’ regulatory history. While a criminal history requires a formal conviction before it will be considered as part of an individual’s history, a regulatory history does not have to meet as high of a bar. Instead, the majority of interactions with a regulator, no matter whether enforcement action or not, will form part of a provider or professional individuals’ regulatory history. It is this regulatory history which is often relied upon by a regulator to support enforcement action which can significantly impact a provider’s business or an individual’s professional standing.
Individuals who hold a responsibility to a professional regulator are aware that a complaint against their practice and professionalism may be made to the regulator. Any person is entitled to raise a complaint against a professional, this includes: clients, colleagues and members of the public. While there is no limitation on what an individual may raise as a complaint, the mere action of making a complaint does not automatically result in detriment to an individual’s ability to practice. To ensure fairness, the complaint must be subject to review and investigation by the professional regulator before any further steps will be taken. Once this investigation is complete a decision to either close or proceed toward a hearing is made.
Naturally, if a complaint is deemed closed it suggests that there was not sufficient evidence to support the complaint or allegation, or that there was no real prospect that the individual’s fitness to practice would be found to be impaired. In short, it has been deemed that there is no case to answer. It would be wise for an individual to maintain a record of this correspondence and the regulator’s reasoning for coming to this conclusion. An individual could be forgiven for believing that this is the end of the matter. However, where a further complaint of a similar nature arises within three years of the previously ‘closed’ decision, a case examiner may take the original complaint into account when considering the new matter. This is in direct contradiction to the natural meaning of the word ‘closed.’
At Ridouts we are able to assist an individual facing challenges from their regulator. This includes a challenge to their fitness to practice which is supported by the resurrection of a previously closed matter. The earlier an individual seeks legal assistance, the more opportunity there is to review the information relied upon by the regulator to support the allegations. If a fresh allegation is reliant on a previously closed complaint, a closer examination of the information may reveal that the regulator is inappropriately relying on the ‘closed’ complaint to support the new allegation.
A provider regulated by the CQC will be aware that an inspection of its service results in the publication of an inspection report. This report is produced for the public and rates the quality of a service based on five domains: safe, effective, caring, responsive and well-led. This process does not fall under the umbrella of CQC enforcement action but is routinely used within enforcement action and / or prosecutions to demonstrate a provider’s regulatory compliance and therefore it’s regulatory history. Where a notice of decision or criminal prosecution are challenged by a provider the outcome is (usually) determined by a Judicial Officer. This is unlike a factual accuracy process where the CQC are the authors of the draft report, reviewers of the provider’s factual accuracy comments and are then the decision maker on what will be published in the final inspection report.
We are well-versed at assisting providers in preparing factual accuracy responses. Our expertise means we are well placed to appreciate the time and effort that goes into compiling a robust response for the regulator. We are also aware of the disappointment experienced by some providers when the CQC make minimal changes to the final inspection report. However, the importance of putting your position on record cannot be underestimated. A provider who simply concedes an opportunity to complete a factual accuracy process because they ‘know nothing will change’, are relinquishing their opportunity to challenge the regulator’s position. It is this challenge which is critical when facing enforcement action or refuting the CQC’s reliance on prior inspection or interactions to suggest that a service has a poor regulatory history. No challenge equates to acceptance and mounting challenge month(s), or years, down the track does not have the same impact. For example, should a provider find themselves at a Care Standards Tribunal hearing, in which the CQC are relying on years of interactions (inspection reports, rating reviews, warning notice(s), letters of intent) to suggest that the provider has a poor regulatory history, the provider’s position is much stronger if they are able to point at challenges to these interactions at the time they occurred. This is compared to endeavoring to suggest, potentially years down the track, that they now disagree with every assertion made or document produced by the CQC.
Further, there is nothing to suggest that a provider cannot prepare and provide relevant stakeholders with their position on the final inspection report. We are able to assist a provider in preparing a public response to the CQC’s final inspection report which allows any stakeholder or reader to make an informed decision on the service with the benefit of both the regulator and the provider’s position.
At Ridouts, we have been privy to a professional regulators reliance on a ‘closed’ matter to support fresh allegation(s) and frequently assist providers with managing the CQC’s reliance on selective interactions to generate an unfavourable regulatory history. The importance of seeking legal assistance, maintaining records and ensuring your position is on record cannot be underestimated. We seek to empower individuals and providers to find their voice against their regulator.
If you are a provider or individual in need of any advice or assistance, please contact Ridouts using the email address email@example.com or by calling 0207 317 0340.