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The requirement that GP practices must register with the Care Quality Commission (“CQC”) has added an additional layer of complexity to the task of running a successful practice. Balancing and juggling competing demands whilst maintaining high quality patient care can be tough.
The CQC has extensive powers to inspect practices, request information and take civil and criminal enforcement action should it feel that the care is falling short of the relevant regulations. Such interventions can have a significant knock-on effect for GPs and the surgeries including referrals to, and action taken by, the GMC, NHS England and other relevant stakeholders. It can even result in the closure of the surgery itself.
At Ridouts we understand the CQC, its powers and how to shape an effective case against action it seeks to take.
Here’s how we can help you:
- Inspections and Ratings
- Suspension, Cancellation & Imposition of Conditions on Registration (including Notice of Proposal and Notice of Decision)
- Warning Notice and Fixed Penalties
- Applications for Registration with CQC
- Training
We have also compiled a set of Useful Resources for GPs in need of legal guidance.
Inspections of GP practices can be both announced and unannounced. Inspections can lead to the practice being rated which, if poor, can lead to reputational damage, being placed in Special Measures, and increased scrutiny.
Providers have the opportunity to challenge factually inaccurate reports and the resulting ratings. Whilst providers may consider it makes for an easier life not to challenge factually inaccurate reports, a succession of reports showing non-compliances can lead to significant enforcement action by the CQC. In addition, any report published will be taken by the reader as being accurate and a true representation of your practice. All providers in the health and social care sector must make sure of the factual accuracy of the report so that the contents truly reflect their service. Ridouts has significant experience of preparing responses to draft reports for providers, frequently achieving amendments.
Timescales for making representations to these reports can be very limited with only a few days to respond. The Ridouts team of specialist lawyers has vast experience of working swiftly and comprehensively to present well evidenced representations supported by evidence. Our lawyers not only challenge the factual accuracy of reports but also the rationale behind the judgements. This includes detailed reviews of the CQC’s own guidance as well as considering the approach taken by inspector’s during their inspection.
Ridouts also has experience in initiating further action against the CQC by way of a Rating Review, complaints or pre-action protocol letters where comments to inspection reports have not been thoroughly or properly considered. This often leads to further amendments to reports; re-gradings; and sometimes the removal of the report in its entirety and the service re-inspected.
How Ridouts has helped GP Practices
Ridouts were instructed by a GP practice to challenge an adverse draft inspection report which it received following a CQC inspection.
The draft inspection report proposed to rate the service as ‘Inadequate’ in the domains Safe, Effective, and Well-led and ‘Requires Improvement’ in the domain ‘Responsive’. CQC also rated the GP Practice’s six population groups as ‘Inadequate’ and stated that our Client was in breach of Regulation 18 of the Health and Social Care Act (Regulated Activities) Regulations 2014 which related to concerns about staffing levels and competencies. The proposed overall rating for the GP Practice was ‘Inadequate’ which would have led to it being placed into Special Measures and could have negatively impacted the practices relationship with its patients and the CCG.
The report was not an accurate reflection of the care provided by the GP practice. We worked with our Client to understand the correct position at the practice and prepared detailed factual accuracy comments to the draft inspection report supported by evidence to demonstrate that CQC’s position was incorrect.
As a result of the submissions, CQC amended a number of sections in the inspection report which resulted in the removal of the Regulation 18 breach and the individual ratings being uplifted to ‘Good’. The overall rating for the final inspection report was ‘Good’.
Ridouts were instructed by a GP practice when it was served an urgent Notice of Decision (“NOD”) under Section 31 of the Health and Social Care Act 2008 by the CQC to impose five conditions on their registration. The conditions took effect immediately, which meant that if the GP practice did not comply they could be prosecuted for failing to do so.
One of the condition’s required the GP practice to undertake a review of thousands of patients’ medical records from the previous three years.
Another condition required that Paramedics working in the GP Practice did not carry out any regulated activities which meant that they could not provide care and treatment to patients.
These conditions were particularly onerous and they would have put considerable strain on our Client and affected the viability of the business. The CQC’s position was that the statutory threshold under Section 31 had been met and urgent action was necessary in order to prevent a person being exposed to harm or the risk of harm.
We assisted our Client with lodging an appeal to the NOD, challenging the accuracy of the CQC’s alleged findings and the proportionality of the decision to issue the NOD. This was an expedited appeals process which meant that we had to be ready to attend a First Tier (Care Standards) Tribunal hearing within two weeks of the appeal being submitted.
We assisted the GP partners in preparing witness statements which addressed the various allegations and conditions. Three days prior to the hearing taking place, the CQC carried out another inspection of the GP practice and made an open offer to settle the matter by removing three of the imposed conditions and amending the other two conditions. The two remaining conditions were far less onerous than the original conditions and our Client was happy to accept these conditions in order to settle the matter. Our Client and the CQC made a joint application to the Tribunal asking for the appeal to be disposed of on the basis that the parties had reached a settlement.
A satisfactory conclusion for all parties was reached.
The CQC has the power to suspend or cancel a GP practices’ registration.
It also has the power to impose conditions on a practice’s registration. Failure to comply with such conditions is a criminal offence and CQC can prosecute a provider for non-compliance.
Conditions can be ‘positive’, requiring a practice to do something, such as sending the CQC weekly action plans or ‘negative’, requiring a practice to not do something, for example, not accept any new patients.
Either way, they can be burdensome and negatively impact the practice.
Whether the CQC is seeking to suspend, cancel or amend your registration it can be done one of two ways. First of all it can be done via a “slow” process which can take a number of months before the proposed action takes effect. Alternatively it can be done through urgent powers. How the CQC does this, depends on the configuration of a practices’ registration. Either the CQC must go to a magistrates’ court to get an order, or it can simply serve a notice on you.
When urgent action is taken it takes effect immediately and to carry on operating without a valid registration is a criminal offence.
Over recent years, the CQC has engaged these enforcement powers and practices have closed as a result.
The CQC can serve various documents on you, at different stages of enforcement. These can be a Notice of Proposal (NOP); a Notice of Decision (NOD); or a Magistrates’ Court Order. Sometimes the CQC will give providers an opportunity to reassure them that suitable action is being taken to mitigate risks, by serving a Letter of Intent.
The issuance of Warning Notices by the CQC to GP practices has been increasing in recent years. They are issued where a practice is deemed to have failed to comply with a legal requirement or there is continuing non-compliance.
Warning Notices are usually the first indication of concern and at Ridouts we often see a history of lower level enforcement being taken before more drastic action.
The CQC has the power to publish information about Warning Notices and it does so routinely. Providers are given the opportunity to make representations about why a Warning Notice should be withdrawn or not be published. It is essential that providers challenge any Warning Notices for non-compliance that they consider incorrect, either because they are based on erroneous judgments or because the process was unfair or disproportionate. The CQC will rely on any failure to challenge the Notices as evidence that the provider acknowledges the appropriateness of the enforcement action.
Fixed Penalty Notices are an alternative to prosecuting a provider and can attract fines. The CQC can issue Fixed Penalty Notices where a health and social care provider has failed, amongst other reasons, to comply with relevant legislation. Examples include where a service does not have a registered manager or where it has failed to make relevant notifications as per the Regulations. Each individual breach can attract a fine of up to £4000, which can escalate.
In respect of Fixed Penalty Notices for non-compliance, the CQC has a duty to publish information once the fee has been paid. Local press often report on stories generated by the CQC’s press releases and the reputational damage can be significant.
Both Warning Notices and Fixed Penalty Notices impact the regulatory record of providers and their reputation. They should not be ignored.
Ridouts were instructed by a GP practice when it was served an urgent Notice of Decision (“NOD”) under Section 31 of the Health and Social Care Act 2008 by the CQC to impose five conditions on their registration. The conditions took effect immediately, which meant that if the GP practice did not comply they could be prosecuted for failing to do so.
One of the condition’s required the GP practice to undertake a review of thousands of patients’ medical records from the previous three years.
Another condition required that Paramedics working in the GP Practice did not carry out any regulated activities which meant that they could not provide care and treatment to patients.
These conditions were particularly onerous and they would have put considerable strain on our Client and affected the viability of the business. The CQC’s position was that the statutory threshold under Section 31 had been met and urgent action was necessary in order to prevent a person being exposed to harm or the risk of harm.
We assisted our Client with lodging an appeal to the NOD, challenging the accuracy of the CQC’s alleged findings and the proportionality of the decision to issue the NOD. This was an expedited appeals process which meant that we had to be ready to attend a First Tier (Care Standards) Tribunal hearing within two weeks of the appeal being submitted.
We assisted the GP partners in preparing witness statements which addressed the various allegations and conditions. Three days prior to the hearing taking place, the CQC carried out another inspection of the GP practice and made an open offer to settle the matter by removing three of the imposed conditions and amending the other two conditions. The two remaining conditions were far less onerous than the original conditions and our Client was happy to accept these conditions in order to settle the matter. Our Client and the CQC made a joint application to the Tribunal asking for the appeal to be disposed of on the basis that the parties had reached a settlement.
A satisfactory conclusion for all parties was reached.
Ridouts acted for an NHS GP Surgery who had received a Warning Notice (and a negative draft inspection report), in which the CQC raised concerns over delays in upgrades to the Providers’ IT systems. The CQC alleged that this demonstrated ineffective systems and processes to ensure regulatory compliance, in breach of Regulation 17 (Good Governance) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
The inspection to which these related took place at a time when the Provider was in the middle of a significant IT switchover which had to be brought forward at speed to meet developing requirements from the relevant Local Authority bodies. This was at a time when all GP surgeries – and, indeed the whole health and social care sector – were already having to adapt extremely quickly to change, and deal with a number of unprecedented pressures brought about by the pandemic.
Ridouts were able to assist the Provider in making submissions to the CQC which demonstrated that by the time the Warning Notices were issued, if not earlier, delays in the IT systems upgrade posed no risk to patient safety, or to the provision of safe care and treatment at the Practice and that effective systems and processes were in place to ensure compliance with the relevant requirements.
The Provider was able to demonstrate that there were justifications for the delays and in any event, appropriate monitoring, oversight and auditing had been in place, and mitigated any potential risk until the Provider had been able to compete the necessary switchover. Further, it was not necessary, proportionate or in the public interest to either issue the Warning Notice, or to publish it.
The CQC accepted the submissions on the Warning Notice and it was withdrawn before publication. This was a good result for the Provider because they do not have a non-compliance on their regulatory record, and they avoided the potential commercial and reputational damage which can attach to a Warning Notice.
Further, the CQC accepted that further understanding of the IT systems would be beneficial, and allow them to better understand the Provider’s service, and more accurately report on it. The Provider was able to engage positively and proactively with the CQC inspection team, and the CQC decided to re-inspect, to assist it in better understanding the Provider’s IT systems, and better engage with it on inspection and monitoring activity in future.
The CQC can ask any provider to provide it with information and documentation (which includes medical records) under Section 64 of the Health and Social Care Act 2008 if it considers it necessary or expedient to have for the purposes of any of its regulatory functions. This is a wide remit and failure to comply with a request under Section 64 is an offence punishable with a fine.
The request for information is usually because the CQC has a concern about the provider. It is therefore important for a provider to consider how that information is presented to the CQC to assure the CQC, whilst complying with the request. It is also important to understand what information is being supplied and how this may impact the provider should the CQC use it to take action against a provider.
Ridouts were instructed by a GP practice after it received a request from the CQC for information and documentation under Section 64 of the Health and Social Care Act 2008.
The CQC issued the Section 64 letter two days after an unannounced inspection on the basis that there were alleged concerns about the provision of care to patients.
The CQC requested various documentation from our Client in relation to patient records and staff DBS checks. The CQC also requested a weekly action plan from our Client to provide assurances that the issues and concerns identified during the inspection were being addressed.
We assisted our Client in collating documentation that evidenced the action that the GP practice was taking to address the CQC’s concerns. There was a lot of information to work through. We helped our Client to draft the action plan, linking the action plan to the concerns raised in the Section 64 letter. We ensured that the information in the action plan was presented to the CQC in a clear and logical format and that it captured what was required and did not go beyond.
We also drafted an accompanying letter to the action plan which explained to the CQC what documentation was being provided and why. Where our Client was unable to supply the requested information we provided explanations for this.
As a result of the action plan and covering letter, the CQC did not take any further enforcement action.
Starting a new business is a daunting prospect, not least when it is a health and social care business that is subject to a rigid system of regulation and requires registration with a national regulator. All providers of health and social care services in England are required to register with the CQC and those providing children’s social care services must register with Ofsted.
This will require a health and social care provider to complete a comprehensive application form detailing the kind of service that they wish to provide, where it will be provided and who will be the registered manager, amongst other things. The application process can be quite overwhelming particularly when a provider wants to operate from multiple locations.
At Ridouts we have wide experience in preparing a service for registration and are able to help navigate the maze of regulation by supporting you every step of the way. We also have experience of helping provider’s when the CQC has refused an application to register a service.
Services include:
- Reviewing your Statement of Purpose;
- Establishing which regulated activities/services you will be providing;
- Consideration of any additional guidance that the regulator might require a provider to rely upon when applying for registration
- Assisting with the registration of your manager;
- Making sure that all relevant applicants have applied for the relevant CQC or Ofsted enhanced DBS checks; and
- Reviewing the completed application before submission.
The process of registration can be complicated and lengthy but if a provider prepares itself thoroughly then the course will undoubtedly run more smoothly. Our team of specialist lawyers can make sure that this process is as seamless as possible
Ridouts can provide in-house training.
We can, for example, help your business prepare for an inspection and guide the provider on the steps they can take to help achieve the best outcome.
When you undertake a training session from the Ridouts team, we will liaise with you in order to tailor the instruction to the particular needs of the staff at the service. Our team are vastly experienced in speaking to health and social care providers and explaining issues in both a clear and practical way.
Many of our clients have noted that the training provided by Ridouts, particularly in respect of preparing for inspection, has proven very beneficial to them and has enabled staff to fully understand the inspection process and empowered them to do themselves and their service justice.
