Over the past 2 to 3 years we have witnessed an increasing distaste from the CQC for any form of challenge to their decisions in relation to care services. Added to this the CQC have shown a strong preference to follow registration and enforcement action based on their own devised practices and procedures rather than following those procedures provided by law. This has been combined with the imposition of ever shorter time limit to respond to various forms of enforcement action.
The legislation provides CQC with a powerful weapon to take urgent action if there is perceived a risk of harm to anyone (see s31 Health and Social Care Act 2008).
The CQC can take immediate action without reference to any judicial authority to suspend registration or to impose or remove conditions of registration. As a result of the CQC registering providers with multiple care services by introducing so-called Location Conditions which permit operations from a particular site, the CQC can use this process, in effect, to cancel a registration without any timeframe to consider and respond to allegations.
The effect of the CQC’s decision is that that decision takes immediate effect. If the condition removed is a Location Condition the CQC has taken to itself powers to shut down services instantly. There is a fast-track appeal, but, this appeal will take at least 4 to 6 weeks to come on for hearing.
However the effect of the CQC’s decision is immediate and so a remedy to reopen 4 to 6 weeks later will be cold comfort. The reality is that a service so closed will not recover. There will be no compensation even if the decision is found to have been misguided.
Even less draconian operational decisions may have a significant and burdensome impact. Let alone a suspension which may be little more than cancellation by another name.
In recognition of the authoritarian and expropriatory nature of their immediate Decision the CQC have adopted a policy of issuing Warnings of the imminence of such steps being taken. These Warnings seek to identify concerns and broadly indicate an intention by the CQC to conduct immediate enforcement action of various forms unless a Plan is submitted which satisfies the CQC that whatever is the concern, it will be addressed.
There is no appeal against such as a Warning. Such Warnings are styled Letters of Intent. In effect the Warnings are a threat to the future viability of the service unless CQC are satisfied with the contents of a remedial Plan (an action Plan).
Clearly CQC fear challenge on the basis that an urgent procedure is being deployed inappropriately if the time given is sufficient to prepare a detailed Plan i.e. if it can wait for such a time, how can it be that urgent! So, to meet it, that prospective challenge, CQC set seriously tight deadlines, at which lawyers would be horrified, to avoid such an action.
It takes time to prepare a detailed Letter of Intent and so they tend to arrive at about 5 pm (the end of the working day) when advice and support may be difficult to source, and, a Plan prepared by early to mid-morning on the next working day. From 5 pm on Monday to 11 am on Tuesday is a challenging timeframe for anyone and more so when set beside the need to continue to operate the service. Such timescales are absolutely standard.
Nevertheless whatever the provider may think of the process or the allegations or the actions requested, these Letters of Intent need to be taken very seriously. If concerns are not addressed a vibrant and successful business may be destroyed literally overnight. It is imperative to address the concerns by the production of an action Plan within the timescale set.
Leave complaints and challenges to a later date. If you can douse the fire you live to contest another day. If you do not respond, it is almost certain that destructive enforcement action will follow. In the worst cases residents may be moved and staff substantially demoralised.
The essence of the necessary action Plan is to address the concern identified and set out remedial steps with named ownership to the tasks to be undertaken and a fast but realistic timescale. Do not delay and be as thorough as the short timescale permits.
Despite the immediate threat the CQC are probably expecting this wake-up call to achieve a result which they can accept. An adverse decision is not a forgone conclusion but whinging about timescales will get you nowhere. The vital support is from operational consultants rather than lawyers. However always anticipate that urgent legal appeals might be needed in the next phase if the threat of the urgent action materialises. Be aware that this action could be taken against anyone and may come as a shock and surprise. Have an urgent action policy in place so that you and your staff know what to do and who to contact.
To finish on a brighter note, in virtually all cases in which we have been engaged, where a powerful action Plan is submitted on time, the CQC have accepted that the Plan addresses the concerns. The challenge then is to ensure that the Plan is delivered.
As with the Terminator, the CQC will be back.
Be Aware, Be Prepared, Have a Plan to respond.