There is a risk with any regulator that its senior management comes to see its role as wider than its actual statutory base permits. Sadly, it is a condition that currently afflicts the Care Quality Commission in the way it is making registration decisions in the learning disability and autism sector.
Outwith its jurisdiction, CQC is adopting the role of a market regulator, only accepting applications to operate new LD services, or extending existing ones, if they correspond with CQC’s interpretation of national guidance.
CQC is saying there is only one model of care in the LD and autism sector that is acceptable: one that is small-scale (i.e. no more than six people) situated in a residential area (as part of a community) which is close to where people come from.
CQC’s redefinition of itself as a “market shaping” regulator in the LD arena corresponded with it issuing a Policy Statement in February 2016 called “Registering the right support” which sets out how it will process new LD applications. There was no public consultation in relation to this Policy.
CQC’s Policy is to apply the post-Winterbourne View national guidance – notably “Building the Right Support” (October 2015) – aimed at getting people out of in-patient services into community settings, when making its registration decisions. While that aim is laudable, the problem is that CQC is applying that national guidance in an inflexible and unlawful manner.
The ”one size fits all” diktat of CQC is at variance with the statutory scheme which requires CQC to make evidence based registration decisions looking at the specifics of each particular applicant. The test should be what works, judged against the Regulations. CQC should not approach applications on the basis there is only one acceptable service model corresponding with its (flawed) interpretation of national guidance.
The first victim of CQC’s approach is choice. Service users and families may wish to use proposed new services that are out-of-area given the absence of local specialist provision. However, CQC will not register new facilities, or allow additional beds to be opened in existing services, if they are not earmarked for local need. By local need, CQC indicates that it should be people from the immediate area who will use the new services. On this basis, even in-county placements will not meet CQC’s interpretation of localism. One major problem with this approach is that there may not be sufficient local need to make a new facility financially viable. Choice will be frustrated further if the proposed service is seen as being too large – arbitrarily defined by CQC as anything above 6 – and/or is situated in a non-residential setting. Following CQC’s logic a service user from Liverpool must be accommodated and cared for in that city even if he or she (with the support of family and commissioners) wishes to move to, say, a specialist setting in rural Devon.
Ironically the national guidance that CQC purports to rely on emphasises the importance of choice. Furthermore, one of CQC’s own statutory objectives is to take account of the wishes and preferences of the people, who live or might come to live in homes, and their relatives when discharging its regulatory functions.
The second victim of CQC’s approach is the objective of the national guidance itself. By misinterpreting and misquoting the national guidance, CQC is preventing the discharge of people from in-patient hospital units, of which there are more than 2500 nationally, to suitable, new community settings.
The national guidance only describes a preferred model of care. It does not purport to say that it should be the only model of care. For example, the Service Model, published in October 2015 for commissioners, states:
“Decisions should be based on what is right for each individual, but for most people supporting them in a home near their families and friends, and enabling them to be part of their community will be the right decision.”
This anticipates there will be individuals who will benefit from a model of care that may depart in certain respects from the preferred one set out in the guidance and/or that other models of care may be able to achieve equally beneficial outcomes. CQC’s Policy fails to appreciate that and instead treats the guidance as though it were laying down a “one size fits all” rule.
This is not an academic dispute. It is affecting real lives. One proposed development in Lincolnshire, The Beeches, is not presently able to go ahead because of the position CQC has adopted, even though service users, families and commissioners wish to use it. The provider who wishes to open the facility, Home from Home Care, has a tried and tested model across its 11 care homes, which is highly successful, as evidenced by CQC’s inspections of their services. Paul de Savary, the Managing Director of Home from Home Care says:
“It’s ironic that CQC’s technocracy discriminates against the most complex and vulnerable individuals for whom ‘one size’ doesn’t fit. And when you seek dialogue, CQC refuses because you have sought legal clarification. The vulnerable are the victims of this arrogance and stupidity as they have no choice, whereas we can always invest elsewhere.”
Many other developments across the country have been and will be derailed by CQC’s stance, further hindering the discharge of patients from in-patient hospital facilities and risking even higher admissions to those services in the absence of new community facilities.
Conclusion
CQC wrongly interprets the national guidance as though it contains a statutory requirement that only one model of care is allowed in the LD and autism sector. There is no such statutory requirement. To the contrary, when one examines the Fundamental Standards, the enduring theme is one of service user involvement, choice and control. The position adopted by CQC stands in opposition to the basic principles in the Fundamental Standards which CQC is obliged to enforce.
Ultimately it is not about money, it is about what works. However, it is a fact that investors will not come forward given the level of uncertainty created by CQC’s Policy. It is fanciful to think that the State will step in to finance new LD and autism services on a purely local level across all parts of the country. Inevitably, supply will not meet demand.
CQC proposes to consult on revisions to Registering the Right Support in December 2016. . It is obliged to consult with an open mind. CQC must acknowledge that it cannot assume a market shaping role which displaces it core registration duties. It should withdraw its Policy Statement and introduce new guidance that allows for innovation and choice where the evidence demonstrates the proposed new services will be personalised, of a high standard and safe. Irrespective of the consultation, CQC should abandon its untenable position and make registration decisions in accordance with the legislation which governs its affairs and established public law principles of reasonableness and rationality. If it does not do this, the risk is that CQC will become the problem, rather than the solution, as far as the discharge of the 2500+ service users from in-patient facilities are concerned. That is not how the CQC senior management would wish to be remembered, surely?
