In April this year, CQC published its latest version of its enforcement policy which included a new enforcement escalator. The underlying principle was that if providers do not fall into compliance following low end enforcement, CQC will move on to higher end enforcement.
The policy has to be seen in the context of a regulator facing a barrage of criticism. From Mid Staffordshire to Winterbourne, from the Health Committee to the Public Accounts Committee, CQC was moving from one crisis to another.
CQC’s reputation has been so badly damaged that when experts in a recent conference were asked whether supported living carried a risk because it was unregulated, there was a consensus that the regulator was not much of a safeguard in any event.
A new, tougher approach seemed inevitable and we are now i seeing an increasing number of proposals to cancel registrations or remove particular locations. Such proposals are of course very serious, but with the right approach, there is every prospect of rescuing the situation.
The two most important factors that will influence the outcome are acting quickly and re-building confidence with the regulator.
The first of these, acting quickly, is fundamental. The timetable for responding to notices of proposal is set by statute and it is doubtful in the extreme that CQC would ever be persuaded to extend it. Indeed, it is far more likely that CQC would argue that it does not have discretion to do so. Though this view is probably wrong, it makes little sense to test CQC on the point. In short, providers have 28 days within which to make representations. Those providers who want to contest the proposal should make absolutely sure they do not miss the deadline.
What, then, should you include in the representations? A two pronged approach works best. First, go through the notice of proposal line by line. If there is anything you disagree with, state why it is wrong and provide evidence to support your correction.
Generally, notices of proposal to cancel registrations follow after a long history of non-compliance and though there may be some errors in the notice, it is likely that that there will have been shortfalls in the quality of the service.
The second part of your representations should therefore explain how the cracks will be filled. The key is to build confidence with the regulator. If there were any particular reasons for the service’s failings, for example a shareholder deadlock, explain them and provide reassurance that the cause has been resolved and standards are improving. Provide details of how future slips will be avoided, for example by reference to new quality assurance and monitoring. This part of your representations is about persuading CQC that you have insight into previous failings, the worst is behind you and you have a credible and responsible plan to achieving full compliance.
The quicker you are able to reach compliance, the better. After you have submitted representations, CQC must make a decision either to adopt its proposal and continue with the cancellation or otherwise not to adopt the decision leaving the registration intact. Crucially, CQC must make its decision based on the facts as they are at the time of the decision, not at the time of the initial notice. The ideal representations will therefore state the home has already achieved compliance by the time they are submitted and invite CQC to re-inspect to confirm this.
If, despite your best efforts, CQC still decides to proceed with the cancellation, there is still ample chance to recover. Providers have 28 days within which to lodge an appeal to a tribunal. If an appeal is lodged, the cancellation does not take effect until the appeal has been determined or abandoned. That process can typically take nine to twelve months. If the appeal does go to a trial, the tribunal must take into account any changes made in the period between the decision and the trial. This includes any improvements made by the provider in that period. Providers may need to persuade the tribunal that the improvement can be sustained and that may be challenging if there is a long history of non-compliance. However, it is not an insurmountable challenge for providers who are dedicated to saving their services.
The new trend of increasing higher end enforcement is likely to continue given CQC’s perceived failings in recent years. Providers should not be intimidated by that. With decisive action and expert advice, there is every prospect that services threatened with cancellation can be pulled back from the brink.