In the November/December publication of Healthcare Business, I presented a legal perspective on CQC decision-making in respect of new CQC registrations in the Learning Disability sector. The article referred to what was then the awaited CQC consultation on changes to its policy statement Registering the Right Support, the original version of which was published in February 2016 without any public consultation. This article provides an update on where we are with the consultation and how CQC is operating in terms of making registration decisions in the sector.
True to its word, CQC did start its consultation on Registering the Right Support in December 2016, with it closing on 14 February 2017. Normally a consultation will present options which typically include (1) sticking with the status quo and (2) revising the current position in various ways.
In the context of the Registering the Right Support consultation, CQC might have included the option of abandoning reliance on a “policy statement” altogether in relation to LD registrations or of watering down its impact on the sector by stressing that it is only guidance to be taken into account and does not have force of law. However, CQC did not present a range of options. There was only one: to tighten up the policy to make it clear that all new registrations in the LD sector should be designed and developed in accordance with CQC’s interpretation of the national guidance in the area, notably that linked to the Transforming Care Agenda. The clear position adopted by CQC is that if a new development does not accord with CQC’s policy position on the type of accommodation it wishes to see developed for people with a learning disability, CQC is unlikely to register it.
At Ridouts, we urged CQC to withdraw its reliance on the February 2016 version of Registering the Right Support pending the outcome of the consultation. CQC refused and said that it would continue to apply the existing guidance to new applications in the sector. In fact, the February 2016 version of Registering the Right Support only talks about providers and applicants taking into account the national guidance, not having to follow it. However, we are finding that CQC registration officers are applying the guidance as though it were mandatory, which it is not. Time and again, we see statements being made by CQC personnel that a new development does not follow national guidance and therefore should be refused registration, without due regard to the track record of the applicant.
What we do know is that a large number of providers participated in the consultation, giving their invaluable perspective on the practical realities of delivering on the Transforming Care Agenda and that a “one size fits all” diktat from CQC just won’t work. Given the number of submissions from providers and other parties, CQC indicated that it would delay its response to the consultation until 11 May. However, since then the small matter of a general election has emerged with CQC now saying that the outcome of the consultation will have to wait until after voting on 8 June due to purdah. Of course that is not the fault of CQC but it gives rise to a situation where the time from the start of the consultation to its outcome will be approaching six months, a delay of itself that is causing profound uncertainty in the market.
Fortunately, we have an indication of where CQC is going with the consultation. At a Care England trade association meeting with CQC in the second week of April, those attending asked for an update from CQC on the consultation. The CQC policy team issued the following text which was circulated by Care England to its members on 18 April:
“The guidance applies to all providers of health and social care services. Health settings generally have more beds but they would be registering for ‘treatment of disease, disorder or injury’ and not ‘accommodation with personal care / nursing’.
For providers of services that provide care, or that might intend to provide care in the future for people with a learning disability and/or autism who display behaviour that challenges, including those with a mental health condition, CQC will adopt the presumption of small services “usually accommodating six or less”. This position is in line with the current statements of best practice in Building the Right Support.
CQC will not adopt ‘six’ as a rigid rule in any service for people with a learning disability and/or autism. CQC may register providers who have services that are small scale, but accommodate more than six people, where providers are able to demonstrate that they accord with all of the principles and values in Building the Right Support guidance, and meet the fundamental standards and other relevant regulations.
CQC knows that the provision of care to people with a learning disability and/or autism is complex. There are multiple factors that affect outcomes for individuals. CQC therefore does not consider the size of service in isolation from other considerations, which include, but are not limited to: skills of staff; effectiveness of management; and evidence base for the proposed care model. As such, CQC recognises the need to have a measure of flexibility in regards to the size of services.
In line with the evidence which underpins the national model, that smaller services are better able to provide personalised care than larger services, CQC remains of the view that smaller units are likely to be preferable for people with a learning disability because they promote the underpinning principles set out in Building the Right Support (which regulations require CQC to apply).”
The concerning statement above is that CQC believe that regulations require them to apply the Building the Right Support guidance. That is plain wrong. At most, the national guidance should be taken into account by providers wishing to open new services or expand existing ones. However, what CQC is saying is at least honest. It is setting out not only to regulate the market but shape it as it sees fit. Indeed its strategy for 2016-2012 is called Shaping the Future. The problem is that CQC has no market shaping powers over the entire sector unlike local authorities where the Care Act 2014 expressly requires them as commissioners to develop market position statements.
CQC indicates that it will be flexible on numbers to a degree. However, we are coming across cases where applications for 8 beds are being turned down as large scale which is a nonsense. In contrast, other applications for 8 are being granted without fuss. There is little consistency. There is then the absurdity and unfairness that the “ideal” of 6 beds is only being applied to the adult social care sector, not the NHS. CQC is still registering hospital inpatient units that are significantly larger than 6, disregarding the national guidance which primarily is about getting people out of hospitals into community settings. As always, there appears to be one rule for the public sector and another for the private and voluntary.
The irony in all of this is that CQC wishes to avoid registering settings that might become institutions when in fact it is acting like an institution itself: inward looking, autocratic and outdated in its approach. With an election coming, surely the times are for a changing!