New Warning Notices Guidance Published – better but still not clear

In November 2011 and May 2012 The Ridout Report reported on Warning Notices, their shortcomings and the confusion arising out of published guidance. In May 2013 new guidance was published on Warning Notices. This new guidance does deal with some of the points that Ridouts has relentlessly pushed CQC to consider as part of representations we have made on behalf of clients challenging Warning Notices.

· CQC’s previous position was that the only representations a provider could make related to why a Warning Notice should not be published. It was not concerned with whether the Warning Notices were factually accurate despite Ridouts pointing out on numerous occasions that this was a breach of the law – namely Section 13 (2), Part 2 of Schedule 2 of The Care Quality Commission (Registration) Regulations 2009 which requires CQC to provide the person on whom the Warning Notice was served the opportunity to make representations “relating to the matters dealt with in the notice” and these to be taken into account when deciding whether to publish the Warning Notice.

The new guidance now states that representations may include that the Warning Notice contains an error; that it is factually inaccurate; that it would be unfair to publish the Warning Notice “for some other reason”; or it should never have been issued for some reason other than the above.

· Previously representations to Warning Notices had to be made within 5 working days – 5 days prior to the factual accuracy comments to the draft inspection report from which Warning Notices arose.

The new guidance now requires representations to a Warning Notice to be made within 10 working days, in line with that of factual accuracy comments to an inspection report, as they accept one may impact on the other. It indicates that both sets of representations will be considered at the same time.

· In correspondence between CQC and Ridouts, CQC have always maintained that they did not have the power to withdraw Warning Notices.

The new guidance says that Warning Notices can now be withdrawn, albeit that CQC states that this will only be done in very exceptional cases.

In fact it states that there are three things CQC can do after it has considered the representations:

1. Withdraw the Warning Notice;

2. Withdraw the Warning Notice and re-issue another one (where the first contained an error that can be rectified and it is still appropriate to issue a Warning Notice);

3. Publish a summary of the Warning Notice and maybe issue a press release.

Whilst it is pleasing to see that some of the fundamental concerns surrounding Warning Notices have been acknowledged by CQC there still remains some confusion in the new guidance particularly  surrounding publication.

The guidance states that if a provider’s representations are not upheld than the CQC will refer to the Warning Notice in the relevant inspection report and on the relevant Location page on CQC’s website. They will also notify the press and “may” issue a press release. It is unclear whether the press will be notified even if a press release is not issued.

Where CQC withdraws a Warning Notice but issues a new one after rectifying the old one the Guidance states that it will consider whether it is appropriate to publish the new Notice and CQC will inform the provider of the decision. This suggests that the provider will not be given the opportunity to make representations to the new Warning Notice which cannot be fair or reasonable. However, in a recent case that Ridouts has advised on, where these exact circumstances arose, CQC accepted the time period in which to make representations to the Warning Notice started again when the new Notice was served. Providers should push hard to have the opportunity to review and comment if there is any suggestion to the contrary.

In addition the guidance says that CQC “will always” make reference to enforcement action in the relevant inspection report and on the relevant location page on CQC’s website. Again, it is unclear whether this is the case even if CQC agree to withdraw the Warning Notice or if they agree that a summary of the warning notice should not be published or press release issued. This raises questions about the legitimacy of the representation process if reference to enforcement action will be published in some form.

There is no criteria set out in the Guidance to indicate when CQC considers it appropriate to publish a summary of the Warning Notice and issue a press release verses just reporting it in the inspection report. The suggestion is that it’s at the inspector’s discretion.

The Guidance states that CQC must send a copy of the Warning Notice to relevant external bodies which does reflect section 39 of the Health and Social Care Act 2008. However, under section 8 of The Care Quality Commission (Registration) Regulations 2009 there is an exemption to this requirement where it appears to the Commission that the Warning Notice does not have a material impact on the regulated activity being carried on. CQC may argue that all Warning Notices are material although quite clearly the legislation envisages this may not be the case. For example, where a Warning Notice is issued for a past failure that has already been put right at the time the Warning Notice is served, it may be argued that this will not have a material impact on the regulated activity and therefore there is no requirement to notify relevant external bodies.

However, the Guidance is not clear whether CQC will await any representations made before they send a copy of the Warning Notice to the relevant bodies. The Guidance states that if the Warning Notice is withdrawn CQC will inform the relevant external bodies of this, suggesting that CQC will not await representations before sending the Warning Notice to those bodies, however, only four paragraphs on from this, the Guidance states that if CQC confirms the accuracy and appropriateness of the Warning Notices but decides it will not publish it, CQC will still send copies to the external bodies – suggesting that they will await representations.

Whilst the Act does state that the CQC “must” give a copy of the Warning Notice to those bodies it does not specify when this must be done. Experience dictates that those relevant bodies, which include local authorities, Clinical Commissioning Groups and Strategic Health Authorities, will often initiate their own action as a result of what they have been told by CQC. If the Warning Notice is then withdrawn following representations made, CQC may have set a hare running unnecessarily.

On the basis the Guidance states that it aims to respond to any representations within five working days of receipt, the most sensible thing for CQC to do would be to await the representations process to be completed before informing external bodies (and only then if the Notice is considered to have a material impact on the regulated activity). However, if there is immediate concern for service user’s care and welfare there may be good reason for CQC to inform other bodies of the action it is taking. Each situation ought to be judged on its own merits, which of course, can cause disparity between inspectors and regions.

So we are left once again with a less than clear picture from CQC. However, what is clear is that if you receive a Warning Notice and you do not agree with it – either the content; whether it should be published or both then rigorous representations should be made. CQC must consider each case individually and should not stick rigidly to its own Guidance. The sooner all relevant points are placed in front of CQC the more chance you have of protecting your business.

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