Healthcare Business – Reflections from the front line

This month I will draw together some operational themes showing trends in practice, in regulation, commissioning and staffing.  All of these combine to make a providers’ task more difficult.

Regulation

CQC and other regulators grow in power.  Government encourages the regulator to believe that their judgments are beyond the prospect of error.  Senior staff at CQC appear to believe this nonsense and, in turn, clearly to communicate this fallacious proposition to those down the chain.  Individual inspectors and inspection managers represent this policy from on high in differing ways.  Some are not truly deflected from doing a proper job in the public interest; others see this as a lazy option to sidestep or ignore errors of fact or differences of opinion.

Except in glaring cases, where the facts justify serious criminal action, CQC do not follow up with regulatory enforcement action or criminal prosecution.  There is no real arbiter for genuine disagreement or for an obdurate CQC who just refuse to accept that their criticisms are simply wrong.  So what is to be done in such cases?

Rating reviews are a completely inadequate remedy.  Months pass by and, then, most are excluded on technical grounds.  Judicial Review (JR) will only address errors of process or irrationality or maybe situations which occur too frequently, where the CQC report is riddled with errors.  Given the cost and delay JR will only really be an option in a minority of very special cases.  CQC say correctly that they are entitled to stand by their inspectors findings.  Exactly the same position applies to service providers.  With no effective court of arbitration, providers who disagree can and should stand by their disagreement and communicate that disagreement to relevant stakeholders.  Then commissioners and service users may decide for themselves.

If CQC work to press the matter to a form of dispute where they will be accountable to justify their decision, then they will have to present their Officers for challenge.  Unsurprisingly they do not often accept such a challenge.  Sadly CQC does not accept the same need for mature self-reflection as it expects of those it regulates.

Do not be afraid to stand by your position if you are confident that you are correct.  Certainly do not be cowed into failing to prevent a response where you disagree.  Remember failure to challenge will become acceptance of criticism as fact.

CQC’s distaste for challenge has shown itself in two particular areas.

  1. Release of Inspection Notes

It is obvious that the strength of any allegation must be tested against the weight of contemporary evidence.  Where inspectors visit and inspect they are to be expected to make real time notes on their observation and findings from which to deliver balanced conclusions.  We found a variety of responses from inspection teams to the disclosure of notes of: – “you may have them”; “no you may not they are confidential”; “they need to be redacted (doctored) to exclude “impermissible” material”; and, now, quite frequently “it is just too much of a burden for inspectors”… what? as public servants, to justify conclusions which may be seriously damaging! Come off it!

The reality is that the disclosure of such notes is a vital part of any review of the integrity of adverse assertions and “findings”.  No honest inspector has anything to fear from disclosure- indeed their findings may be enhanced with respect, if based on clear contemporary findings.  There is nothing confidential from the regulated unless an express demand for confidentiality is registered.

Only in rare cases should this be granted.  In any event material, the source and detail of which will not be revealed, cannot be relied upon as evidence.  These are simple propositions.

It is high time CQC recognised its responsibilities and supplied notes as a matter of course.  Sadly in many cases, where we have extracted the notes, these notes do not support the matching allegation made by CQC in the draft reports.

  1. SSP v CQC

In this case the High court clearly ruled that obviously provable errors in reports should be corrected and eliminated.  If dissatisfied, providers are entitled to seek a truly independent review within CQC.  That is not from anyone associated with the process but an independent wise reviewer distant from the process.  Providers should take this point in the short factual accuracy challenge window.  It may be the last chance to set the record straight.

Some inspection managers are just unwilling to accept the judge’s injunction, even though, it is wholly unexceptional and obvious to anyone who believes in the fairness of process.

DO NOT lose this opportunity when it arises.  In almost every case, we find that providers complain that CQC have got this wrong and produce back up evidence.  Do ask for truly independent review.  It will pay dividends.

Commissioning

Budgets are tighter.  The gap between independent funding and public support gets wider and it is doubtful that this will be changed by Mr Hammond’s budget this week.  The concept of a “fair price for care” has always been a nonsense.  Prices are determined by markets not fairness.

It is trite law that one party cannot vary a contract with the consent of the other/s.

However the law does recognise that terms may be implied to fill contractual gaps which are necessary to be filled to give the contract commercial sense.  Necessity is a high test but not an impossible burden.

We have successfully argued that in medium to long term care contracts, it is necessary to imply a system to review prices to meet change of circumstances not covered by the contract.  This can include change of presenting conditions, continuing erosion of margin by inflation and statutory change eg. national minimum wage.

The implied term does not guarantee an increase but does guarantee that a commissioner can be forced to engage in cases of a change of circumstance.

This is a real way to provide for enhanced resource within the contract structure. 

Employment

Providers have been challenged by trade unions and HMRC over a popular and standard practice to enhance staff availability (particularly at night) by care staff available to work but not working in return for a flat “sleep in” fee.  The counter argument has been, that if required to be available for work and indeed fit to work, the worker is at the employers’ disposal and this “on working time”.  This helped providers cover for emergency contingencies or sudden crises and was extremely popular with staff who enhanced earnings with only rare requirements to present for work.

Many of us thought that the “sleep in” debate was over and that if a worker can be required to turn out on demand, they were effectively at work.

However a number of care sector appeals are due to be heard and this issue may be revisited.  The proposition appear to involve arguing that a worker is only actually working when working, rather than simply being available to work if called.  All in the sector will watch the outcome with some interest.

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