Musings on CQC’s proposed strategy on regulating the health and social sector through 2021

Topics covered: CQC, CQC consultation, CQC enforcement, CQC inspection, NHS, Nythan Smith

CQC announced a consultation on its new strategy to take it from 2021 and beyond recently. In this article I pull out some key observations from this consultation and what impact they may have on the health and social sector.

There are some positive measures proposed by the CQC but the one area which appears to have been paid only lip service is in respect of how improvement is to be encouraged across the full gamete of those it regulates.

There has long been a different approach that has been taken to publicly-owned healthcare providers largely falling within the remit of the NHS and those independent largely privately owned private health and social care providers. The different approach is not necessarily in the manner in which the regulator has chosen to inspect providers which fall in public or private hands but rather is in respect of the measures that are taken when a provider is deemed to not be providing care at the required level and is subject to increased scrutiny by the CQC. If CQC has issues with NHS providers it will rate them poorly and that will then trigger increased NHS involvement with improvement plans and a full suite of support to assist the provider with its path to improve. The approach taken with independent providers before the introduction of CQC’s new strategy involved CQC setting out issues raised with providers but no package to support improvement was then put in place. CQC do mention within their consultation the intention to build up support networks to encourage improvement nationally. There does also seem to be an increased focus on providers reaching out to, and working with, local providers to improve local care systems to justify a rating of good. How this will work in practice is important and whether CQC will allow more time for providers to improve based on the interactions that underperforming providers have with these new schemes of improvement remain to be seen. It would be helpful to have more information as to how this is to work in practice as it presents a seismic shift from the current position to the one proposed in the consultation.

There is to be much more reliance on data in order to benchmark the quality of a provider against and decide how it is to be rated. How this will translate in practice will be interesting –  will CQC adopt a one-size-fits-all strategy where, for example, if a certain number of safeguardings have been recorded a provider will be unable to be rated above a certain level? One would hope that such a rigid approach is not adopted. If, as noted in the consultation document, data is to be used more readily this will free up time to increase, where necessary, direct observations of care to assure CQC of the quality of care offered by a provider. This might be a positive development for some providers.

There is to be a greater reliance on feedback from people on services. Not to underplay the usefulness of feedback from users of the service, this should be tempered against what a provider has to say about that feedback. People are more likely to speak on a negative experiences rather than a positive ones which may distort CQC’s perception of the quality of care that is provided at a service. Is it fair to use isolated incidents of alleged suboptimal care (or simply unwarranted grumblings) as demonstrative of the quality of care provided at a service?

The move away from long reports may be welcomed by some. In reality the capacity of the public and observers of a service to go through the painstaking detail of a report to understand the conclusions reached is likely to be limited, possibly even reduced only to reviewing the ratings. The issue with the proposed change of approach is that it is likely that the ability to challenge such shorter reports with less detail and likely more sweeping conclusions is likely to require careful thought and consideration in order to find points of challenge.  Such challenges can be strengthened with reference to a legal basis. There is no reference within the consultation to there being an avenue to challenge such findings as are reached within assessments of services.

The intention to inspect and rate services more frequently and to focus on those services which have service users that CQC deems are more likely to experience poor outcomes marks a key departure in approach from CQC. The relationship between services and those within CQC tasked with assessing their quality will be more important than ever. It is likely to also lead to a disproportionate focus on services deemed to be a greater risk and this may result in increased action being taken against those providers. An example of such a provider is likely to be those with higher proportions of service users deemed to lack capacity and are unable to voice concerns about the care they receive.

The reference to good and poor categories of service throughout the consultation document may be a precursor to the redrafting of ratings along different lines in the near future. There is the reference to an increase in what is required to be a good service within the consultation document which may result in those currently rated as such not being considered as still being worthy of such a rating.

The consultation document sets out an intention to improve the personnel within CQC in order to ensure that it is has the necessary expertise in house to advise it on health and safety matters. Since CQC took over the mantle of prosecuting for health and safety offences prosecutions within registered services in April 2015 there have only been a small number of prosecutions.  Reaching the threshold required to justify bringing a criminal charge which is likely to result in a large fine is not that high with the bar to be met involving the exposure to a significant risk of harm. The lack of experience within CQC ranks in addressing health and safety related cases is acknowledged in the consultation and the desire to increase those ranks could mark an increase in criminal enforcement action being taken where unsafe care and treatment is found by CQC. At Ridouts we are primed to assist with any such action and strongly defend against such actions which is extremely important given the unlimited nature of some fines and the accompanying reputational damage such action may have on providers.

CQC seeks to take a more active role in flagging up what action a provider has taken  as a result of steps taken by CQC in order to spread knowledge about best practice in respect of safer working cultures. This information is likely to prove helpful to other providers in order to improve the quality of service offered.

CQC was set up to regulate the health and social care sector and a key part of that activity is to encourage improvement within the sector. Inspections will continue to form part of the fulfilment of its objectives, actions that are taken in pursuit of the improvement ambition do appear to be next in line for wholesale change with a greater focus on handholding, and within the parameters that CQC feels comfortable operating. The proof will be in the pudding as to how these new more regular assessments of quality will look and what mechanisms will be in place to allow providers to fairly raise observations on them. This consultation does paint the regulator, on the face of it at least, as one which is more attuned to fulfilling its objective to encourage improvement in a more supportive manner. Will this key change result in CQC becoming a regulator less inclined to resort to enforcement as a means of encouraging improvement or will it double down on its enforcement activities with renewed emphasis? Either way we at Ridouts are here to assist providers of health and social care with ensuring that their voices are properly heard and will defend providers against disproportionate action taken by CQC.

The consultation on CQC’s new strategy is open until 4 March 2021.

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