In July last year, I wrote about the frustration providers were facing around warning notices. CQC was issuing them at an alarming rate and publishing information about virtually all of them. Local and national press, and even TV broadcasters, took an interest from time to time leading to stories that seriously damaged providers’ reputations. Although CQC has a duty to consider representations from providers before deciding whether or not to publish information about warning notices, CQC’s internal guidance on how CQC should exercise its discretion directed staff to ignore much of what providers might want to say. The result was that of the 813 warning notices issued between June 2011 and June 2012, CQC published information about 795 of them – over 97% of the notices issued.
Perhaps most frustrating of all, the guidance directed CQC staff to ignore representations about any improvements the provider had made since the warning notice was issued. As we at Ridouts kept pointing out to CQC, that approach was plainly unlawful. For one thing the relevant regulations expressly require CQC to allow providers to make representations to CQC relating to the matters dealt with in the notice’. Representations which set out improvements are clearly representations which ‘relate’ to matters dealt with in the notice and so CQC had a statutory duty to consider them. But they should have done so anyway as a matter of very basic common sense. It is quite obvious that the public interest case for publishing information about warning notices is stronger is cases where providers have failed to remedy problems (or, in some cases, failed to even acknowledge problems) compared to providers who took immediate remedial action, perhaps before they even received the warning notices.
In December CQC issued revised guidance to staff which removed reference to the previous direction to inspectors to ignore any representations about improvements. In fact, the new guidance prompts inspectors to ask whether ‘the provider is compliant with no risks to the person who use the service’ and if so directs the decision-maker not to publish. Whilst the guidance is not explicit about the point, the wording does imply that CQC’s assessment as to risk should be made at the time the representations are considrered, not at the time the warning notice was first issued. That is certainly the approach CQC should take. Aside from there being a raft of case law on a similar point relating to registration decisions by the tribunal, it is again a matter of common sense that when CQC is considering whether it in the public interest to publish information about warning notices, it can only fairly weigh the competing arguments if it evaluates the situation at the time the decision is made.
What all of this means for providers who have had the misfortune of being on the service end of a warning notice is that the best chance of avoiding adverse publicity is to take the initiative and remedy any faults promptly. When the notice is served, representations should be made within five working days containing a full account of what improvements have been made, as well as any other points the provider considers relevant. Supporting evidence should be included and should be clearly cross referenced in the body of the representations. The key is to make it as easy as possible for CQC to follow the arguments. Given what’s at stake – the reputation of the business – providers may also consider it a good investment to seek professional advice before submitting the final draft to CQC. As with all areas of CQC enforcement, the sooner assistance is sought, the more effective it is likely to be. Overall, persuasive representations that refer to CQC’s guidance and make a strong case that faults have been remedied represents the best chance for providers to avoid potentially damning information being published.