Healthcare Business: They think it’s all over…

Topics covered: Ridouts professional advice

Under the Health and Social Care Act 2008 CQC can take steps to cancel a provider’s registration on an urgent basis on application to a magistrates’ court.  Such powers can be taken against a single home registrant or in order to cancel a provider’s ability to carry on any regulated activities everywhere, by cancelling the registration of all homes that sit under the overarching registration.  Where a provider has multiple homes as conditions on its registration and CQC wishes to cancel the registration of one home, then CQC’s urgent powers lie under section 31.  However, we do not believe that it can have been the legislature’s intent to allow CQC to cancel a Home’s registration immediately without external scrutiny, which is the purpose of an application to a magistrate under section 30.    In addition, section 31 requires CQC to have reasonable cause to believe that unless it acts “any person will or may be exposed to the risk of harm”, whereas section 30 requires that there “will be a serious risk to a person’s life, health or well-being”.   The bar under section 30 is set that much higher than under section 31 which is to be expected given the draconian outcome should the order be granted.

Orders under section 30 are rare, as one would expect, as such action should only be taken in the most extreme circumstances.  As noted above, the bar under section 30 is high.  The magistrate can only make a cancellation order if it appears to them that unless the order is made, there will be a serious risk to a person’s life, health or well-being.  If this is the case one would expect CQC to seek such an order immediately – the outcome being that there was no other action that could reasonably be taken in the circumstances.  A recent decision of the First-Tier Tribunal is respect of an urgent cancellation notes that section 30 is not designed to be used in circumstances surrounding the running of a home, serious as any concerns maybe, where there is not an immediate serious risk to a person’s life or well-being.  One would not expect this action to be taken as a last step in escalating enforcement action unless the required test is satisfied.

What is clear from the recent decision is that the Tribunal sees such an order as essentially a suspension of the registration.  The Tribunal can either confirm the order of make a cessation.  The question therefore arises as to why CQC wouldn’t just suspend the registration (in the case of a one home registrant) urgently under section 31.  The effect is the same albeit that a section 31 notice would not be subject to external scrutiny as a section 30 notice should be. However, it is Ridouts’ experience that a magistrate tends to accept what they are being told.  Such hearings are supposed to be quick (given the level of risk to persons) and an in-depth review of evidence is not undertaken, nor do magistrates have the specialist knowledge of the First Tier Tribunal.

Both actions can, in any event, be appealed and will be heard on an expedited basis given they were done under their urgent powers (within 10 working days of the provider lodging its appeal with the Tribunal).

It has always been the case that the burden of proof has been on CQC (and its predecessors) to demonstrate that the tests under section 30 and 31 are made out.  It has always been the case that the Tribunal must look at the current position at the Home when making its decision.  The latest case reinforces this and actually gives hope to providers and investors that should such action be taken it is not “game over”.   A home without a registration significantly reduces in value.  However, with a further relatively small investment (in comparison to the loss to the value of a Home without registration) the Home may be able to regain its registration; its value and future profitability.  Whilst the burden of proof remains with CQC, steps will need to be taken by any provider in these circumstances to satisfy the Tribunal that there will be no serious risk to service users should the appeal be allowed.

The First Tier Tribunal can impose conditions on a provider as part of allowing an appeal.  A magistrate cannot.  At Ridouts we have seen an increase in the use of conditions being used at the Tribunal.  Therefore there is scope for a Tribunal to restrict operations to any extent it deems necessary to ensure that there will be no serious risk to any service users.  Of course, a Provider must demonstrate its commitment to make improvements; that it has required resourcing to make those improvements; be reflective of what has gone before; and has made, and will make, any necessary changes.  Homes whose registrations are removed on an urgent basis do have a future if sufficient demonstrable steps can be taken to negate any serious risk to life, health or well-being.

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