CQC’s enforcement action has ramped up a notch over the last few months. At Ridouts we are seeing increased numbers of Notices of Proposal (“NOP”). As well as proposals to remove locations, a popular proposal is to add a condition of registration to restrict admissions of service users. Sometimes end dates for that restriction are given, sometimes dates for reviewing the restriction are given, sometimes there is a straight forward blanket ban. If the proposed condition took affect and the condition not removed this would mean homes could never admit another service user.
Whilst a NOP is only a ‘proposal’ and any proposed condition does not take effect until and if the appeal process has been fully utilised – and only then if an appeal should fail, the practical effect of such a NOP is that the restriction on a home is felt straight away. Homes are reluctant to admit service users in case they could feel the wrath of CQC.
Should a home admit a service user, even though there is no restriction whilst the NOP process is followed, it can often cause more aggressive action being taken by CQC – “Here is a provider who has no regard to our concerns”. CQC has the power to take emergency action to cancel a location’s registration or vary conditions to restrict admissions if it has reasonable cause to believe that unless it acts any person will or may be exposed to the risk of harm. Such action takes effect the moment it is served, leaving the provider with the only option to either accept the action or to engage the expedited appeal process. Some providers may wish to force CQC’s hand, to get in front of a Tribunal and get CQC to justify its case so that they are not left for months without a final outcome but such a tactic is of course risky and should not be done without taking legal advice and only when the home is confident of its position.
Restrictions on admissions are effectively a backdoor closure. In any care home, the number of service users will never remain the same and if a NOP is issued, it will be many months before a full tribunal hearing takes place. Invariably the number of residents will have reduced and this is likely to have an impact on the home’s financial viability. This in turn could place the remaining service users in the home at risk.
If CQC wish to close a home, then they should take such enforcement action to do so. They should not take enforcement action which could have the same effect as a closure action. By taking action to restrict admissions this could prevent a provider from exercising its rights of appeal as the home may become financially unviable in the interim. In addition, in taking this backdoor action, CQC are not being held accountable for its decision making or having its evidence and action scrutinised. By issuing long running NOPs CQC can be seen to be taking action without having to be put to the time, effort or cost of justifying it. Such action can ultimately achieve the desired outcome of closure.
Now CQC will say they do not want to see homes fail. They want to see homes improve and compliance to be sustained. And therein lies the next issue we are seeing from CQC – sustainability. A provider is obliged to act in accordance with the requirements as set out in the relevant regulations. It is the Commission’s role to inspect a provider against the relevant regulations. Should a home’s position change and compliance with the relevant regulations be achieved, a NOP can be withdrawn.
However, we are seeing more and more cases of CQC refusing to do so despite a home achieving compliance on the basis that the Commission wish to see that compliance sustained. The Health and Social Care Act 2008 does not contain any mention of sustainability. This is not the legal test.
Imposing a condition to restrict admissions does not achieve sustained compliance, nor does the imposition of a condition negate the Commission’s obligation to inspect. The only way that the Commission can observe if compliance is sustained (despite this not being the correct test for judging compliance/non-compliance) is by undertaking inspections and taking action should the home no longer remain compliant.
It is an abuse of power for it to simply restrict a providers business and hold it in limbo until such time it chooses. This is not its role and is an abuse of its position.
If a provider receives a NOP it should take legal advice. Any proposal should be taken seriously however, a NOP to restrict admissions in some way should be given careful thought so that action can be taken to minimise its impact whilst representations and appeals are pending.