Further Guidance on Suspension of Ratings: Providers should be wary – Caring Times – February 2020

In last month’s edition of Caring Times, I wrote about the CQC’s power to suspend a provider’s rating when it had concerns that the current rating was possibly no longer reflective of the care being provided to service users.

I had highlighted my concern that the only information available to providers was a sentence in the provider guidance stating that a rating may be suspended “if [the CQC] identif[ies] significant concerns that lead [the CQC] to reconsider [its] previous rating. The rating will be suspended until [the CQC] have investigated the concerns and/or re-inspected the service.”

That’s all the guidance says.  No criteria, no process that will be followed, no indicative timescales.

I informed readers that I had made a Freedom of Information Act Request to the CQC for any policies or guidance on this, but, at the time of submitting the article, a response had not been received.  I have now received the CQC’s Guidance for inspectors on suspending ratings (“Guidance”).

The Guidance to the CQC inspectors reveals some interesting, albeit not particularly clear, guidance on these matters.

The CQC states that suspension of ratings should only be carried out in “exceptional” cases where there are serious and urgent concerns about significant risks to service users.  The Guidance sets out factors that the CQC should take into account, but notes that considerations are not limited to these four factors only:

The potential for serious risk to a person’s life, health or well-being;

If the CQC thinks there is a potential for serious risk to a person’s life, health or well-being, then it ought to be checking this promptly and exercising its urgent enforcement powers, not simply sticking a banner on its website noting the rating has been suspended whilst concerns are investigated – this won’t protect anyone.  The CQC are clear to say that the purpose of suspension is to “immediately minimise potential harm to current or potential users of the service” – this is misguided at best, and disingenuous, at worst.

Where the CQC is taking urgent enforcement action, or the risk that urgent enforcement action may be required;

It is unclear how this really differs to criteria number 1.  If there is a potential for serious risk to a person, then the CQC ought to be engaging its urgent enforcement powers.  Now technically, under the Health and Social Care Act 2008, where there are multiple locations on a provider’s registration, if it appears to the CQC that a person “will or may be exposed to harm” then it can take urgent action, whereas a single home registration requires there to be a “serious risk” to enable the CQC to appear before a magistrate to obtain the required urgent order.  This is an anomaly that Ridouts believes was an oversight by the legislature and it was never considered that the CQC could go round handing out bits of paper that immediately cancelled a home’s registration, without judicial oversight.  If urgent action is required, there should be an element of seriousness.

The credibility of the source(s) of the concerns; and

This is an interesting one.  What does this mean?  Within the two worked examples in the Guidance, the CQC actually points to the concerns being credible rather than the source of the concern being credible.  Surely both must be considered hand-in-hand? In one of the examples the source is a whistle blower, and in the second example, is the police.  Whilst I absolutely do not wish to cast any aspersions about whistle-blowers, who have a vital role to play in raising concerns, we also know that sometimes the motives and basis for whistle-blowing are not aligned with the use it is intended for.  Therefore, I would suggest that both the source and the concern’s credibility need to be assessed in the round.

How long may be required to assess the concerns including to complete any necessary inspection activity and post-inspection processes required to re-rate the service.

Whilst the CQC states that suspension of ratings should be for the shortest time possible and any inspection activity required to determine whether the concerns require a re-rating should be done within one month of the rating being suspended, it is concerning that a provider could be potentially penalised whilst the CQC organises itself.  Businesses can be lost in less than a month.

The CQC states that it should not lift a suspension until it has confidence that the published ratings are an accurate reflection of the quality of care.  This could be substantially longer than one month, especially when the CQC notes that an inspection and post-inspection process needs to be completed.  The CQC’s own KPI for publication of an inspection report from the date of an inspection is 56 days at present, so how realistic is a month?

There are some further additional key-points of note:

The CQC states that it will not normally suspend a rating where the current rating is already Requires Improvement or Inadequate.  However, if the CQC deems that there is possibly an “extreme” risk, which, according to its Enforcement Decision Tree prompts the highest form of enforcement action, on an urgent basis, then it is difficult to see how, on the basis that the concern was accurate, this would not warrant a suspension.  Remember Requires Improvement is a wide-ranging rating and you can be just shy of Good or just above Inadequate.

The CQC will usually suspend all ratings for the service concerned, rather than one key question, but may also suspend at Provider level, if this is “appropriate and proportionate”.

Once a concern has been raised which leads the CQC to consider that the current rating may not be accurate, a Management Review Meeting will be convened to determine whether the rating should be suspended and what inspection activity and assessment is required.  The CQC states that “in many cases, it will be appropriate to first carry out an urgent focused inspection to further explore the concerns and gather evidence, before deciding to suspend a rating”.  If this is the case, then it is difficult to see why a rating would need to be suspended – as the inspection activity should reveal if the quality of the care has declined.  It is unclear how this is any different to the process followed at present – where the CQC considers the information it receives and considers risk.

Of course, if the CQC does not carry out an inspection first, to determine whether it ought to suspend ratings, the CQC is going to have to have some strong grounds on which to make this determination.  The CQC is potentially leaving itself open to judicial review claims – where else would the remedy lie?  There is no alternative remedy that ought to be explored first (other than the CQC providing a cursory sentence regarding ‘Challenges’, namely “Contact the appropriate legal team if the provider contacts you with regards to having their rating reinstated or challenges the decision to suspend the rating”.)  It would appear that the CQC hasn’t though this through sufficiently.

The CQC says that the decision to suspend ratings are based on principles of transparency and public protection.  As noted in my December 2019 article, it looks like it’s more about circumventing the legislation which prevents the CQC from publishing information about certain enforcement action until that action is complete, and where any representations or appeal lodged has not been successful.

It will be interesting to see how the CQC uses this tool and the frequency with which it is engaged but it does present as very much open to challenge.