CQC’s annual report for 2012/2013 notes that during the course of that year CQC issued 910 warning notices, up from 638 the year before. People have asked what does this demonstrate? Are standards declining or have CQC pulled its socks up and uncovering more misdemeanours? Well there is a third, more cynical option, that CQC have come under so much scrutiny and criticism in recent months that they have issued more warning notices to show the outside world they have “teeth”. And on an even more cynical note, warning notices are not subject to an appeal process and therefore will not be scrutinised by an external third party as other enforcement action available to CQC is such as by magistrate courts or the First Tier Tribunal.
In addition, just how accurate are the numbers? Well no doubt 910 warning notices were issued However, at Ridouts we see clients being issued with a warning notice for each Regulated Activity they are registered to provide. The vast majority of Locations are registered for more than one Regulated Activity, for example, the majority of care homes are registered for Accommodation with personal or nursing care; Treatment of disease, disorder or injury; and Diagnostics and screening. Therefore three warning notices are issued for each alleged breach of regulation. However, CQC do not tailor the allegations in each warning notice to the relevant Regulated Activity but merely cut and paste the same content for each warning notice with just a different regulated activity listed at the top. One alleged breach of regulation is duplicated several times over to reflect the number of regulated activities the provider is registered for and therefore the figure for non-duplicated warning notices are more likely to be closer to the 300 mark.
Warning notices are issued where there is an alleged breach of regulations. They have to be issued to allow a provider to put the breach right. If they fail to do so, only then can CQC prosecute a provider for the breach. The CQC Annual Report discloses that there were no prosecutions following a warning notice being issued. Either this means that the warnings are working and providers are putting the breaches right or again CQC do not want to be held accountable to an external body in the form of a magistrate’s court.
By issuing a warning notice, CQC are saying that the provider is in criminal breach of the regulations and should they proceed to prosecution they would need to prove this beyond reasonable doubt. At Ridouts we often see that the evidence upon which CQC seek to rely in a warning notice is not sufficient and robust but rather is open to challenge and we have had many successes in preventing press releases being published. Surely given CQC’s limited resources, both in terms of time and money, it is much easier for it to regulate by media rather than prepare a case for prosecution.
The newspapers have reported some horrendous scenarios that have prompted the warning notices being issued, and if there is substance to the allegations they are of such a serious nature that action should be taken immediately to prevent service users being harmed. The majority of warning notices issued relate to an alleged on-going breach and if service users are at such risk then is it appropriate to issue a warning notice, give a provider several weeks to rectify, and then only take action to safeguard residents if the provider has not done so? CQC has significant powers to take urgent action should this be required, to remove or suspend a provider or location registration and impose urgent conditions on a provider’s registration, however, despite care being found to be “unacceptable” on 910 occasions the Annual Report notes that CQC only used its urgent enforcement powers to either urgently suspend provider registrations or urgently impose conditions or variation of conditions in 6 cases.
Warning notices are of course a legitimate form of enforcement action but the Annual Report notes that of the 28,583 Locations inspected 5,281 locations were not meeting at least one standard but only 910 (and as noted above, most likely closer to the 300 mark) breaches warranted a warning notice being issued and 6 required urgent action being taken.
The real question is, is CQC doing all it can to safeguard service users against poor practice or is it paying lip-service to its role as regulator?