In May 2013 CQC issued new Guidance on Warning Notices. The Guidance goes some way to deal with the issues that Ridouts has relentlessly pushed CQC to consider as part of representations we have made on behalf of clients challenging Warning Notices since their introduction.
CQC now accepts that it must consider representations beyond why the Notice should not be published. The Guidance states that representations may include: that the Warning Notice contains an error; that it is factually inaccurate; that it would be unfair to publish the Warning Notice “for some other reason”; or it should never have been issued for some reason other than the above.
Providers also have 10 working days in which to make representations which mirrors the time allowed to make representations to draft inspection reports. CQC accepts that both sets of representations may impact on each other and it will consider them at the same time.
After representations have been made CQC states it can do one of three things:
- Withdraw the Warning Notice;
- Withdraw the Warning Notice and re-issue (where the first contained an error that can be rectified and it is still appropriate to issue a Warning Notice);
- Publish a summary of the Warning Notice and maybe issue a press release.
Whilst it is pleasing to see that some of the fundamental concerns surrounding Warning Notices have been acknowledged there remains some confusion in the Guidance particularly surrounding publication.
If a provider’s representations are not upheld then the CQC will refer to the Warning Notice in the relevant inspection report and on the relevant Location page on CQC’s website. They will also notify the press and “may” issue a press release. It is unclear whether the press will be notified even if a press release is not issued.
The Guidance states that CQC “will always” make reference to enforcement action in the relevant inspection report and on the relevant location page on CQC’s website. It is unclear whether this is the case even if CQC agree to withdraw the Warning Notice or if they agree that a summary of the notice should not be published or press release issued. This raises questions about the legitimacy of the representation process if reference to enforcement action will be published in some form.
Where CQC withdraws a Warning Notice but issues a new one, the Guidance states that it will consider whether it is appropriate to publish the new Notice and the provider will be informed. Whilst this suggests that the provider will not be given the opportunity to make representations to the new Warning Notice, in a recent case that Ridouts has advised on, where these exact circumstances arose, CQC accepted the time period in which to make representations started again when the new Notice was served. Providers should push hard to review and comment if there is any suggestion to the contrary.
No criteria is set out in the Guidance to indicate when CQC considers it appropriate to publish a summary of the Warning Notice and issue a press release verses just reporting it in the inspection report. The suggestion is that it’s at the inspector’s discretion.
The Guidance states that CQC must send a copy of the Warning Notice to relevant external bodies. Whilst this does reflect section 39 of the Health and Social Care Act 2008, there is an exemption to this under section 8 of The Care Quality Commission (Registration) Regulations 2009 where it appears to the Commission that the Warning Notice does not have a material impact on the regulated activity being carried on. The Guidance does not reflect this exemption. CQC may argue that all Warning Notices are material although quite clearly the legislation envisages this may not be the case. For example, where a Warning Notice is issued for a past failure that has been rectified at the time the Warning Notice is served, it may be argued that this will not have a material impact and therefore there is no requirement to notify.
The Guidance is not clear whether CQC will await any representations before sending a copy of the Warning Notice to those bodies. The Guidance states that if the Warning Notice is withdrawn CQC will inform those bodies of this, suggesting that CQC will not await representations before sending. However, only four paragraphs on, the Guidance states that if CQC confirms the accuracy and appropriateness of the Warning Notice but decides it will not publish it, CQC will still send copies– suggesting that they will await representations.
Whilst the Act states that the CQC “must” give a copy of the Warning Notice to those bodies it does not specify when this must be done. Experience dictates that those relevant bodies, which include local authorities, will often initiate their own action as a result of what they have been told. If the Warning Notice is then withdrawn following representations CQC may have set a hare running unnecessarily.
On the basis the Guidance states that CQC aims to respond to any representations within five working days of receipt, the most sensible approach would be to await the representations process to be completed before informing external bodies (and only then if the Notice is considered to have a material impact on the regulated activity). However, if there is immediate concern for service user’s care and welfare there may be good reason for CQC to inform other bodies. Each situation ought to be judged on its own merits.
Once again we are left with a less than clear picture from CQC. However, what is clear is that if you receive a Warning Notice and you do not agree with it – either the content; whether it should be published or both, then rigorous representations should be made. The sooner all relevant points are placed in front of CQC the more chance you have of protecting your business.