The CQC has extensive enforcement powers which, if exercised, can have a major impact on a Trust’s registration.   These powers can be taken on notice or, if urgent, on an emergency basis. 

The CQC can serve a: 

Notice of Proposal (NOP) to: 

• Cancel the Trust’s registration 
• Suspend the Trust’s registration 
• Vary the Trust’s registration by removing a location (and effectively cancel its registration) 
• Vary the Trust’s registration to stop the Trust from doing something, such as not accepting new patients 
• Vary the Trust’s registration to make the Trust do something, such as provide action plans to CQC 

Ridouts can help the Trust to draft representations to the NOP setting out why the proposed action should not be taken. 

Notice of Decision (NOD) to: 

• Cancel, Suspend, or Vary the Trust’s registration which confirms a Notice of Proposal already issued. 
• Suspend or Vary the Trust’s registration on an urgent basis under section 31 of the Health and Social Care Act 2008.  This means the decision takes effect immediately, and the Trust should comply or face committing a criminal offence.  Such action can result in services having to cease immediately. 

Ridouts can help the Trust to appeal the Notice of Decision to the First-Tier (Care Standards) Tribunal. 

Magistrates’ Court Order: 

• Cancelling the Trust’s registration on an urgent basis, which takes effect as soon as the order is made. 

Ridouts can help the Trust to appeal the order to the First-Tier (Care Standards) Tribunal. 

Such action can be highly damaging, reputations can be tarnished, Trusts can be prosecuted for failing to comply with conditions of registration and patient care can be interrupted. 

Ridouts can work with the Trust to build a robust response to these types of action. 

Letter of Intent 

The CQC may issue a Letter of Intent to a Trust.  These are used as a pre-cursor to the above types of action.  These letters ask the Trust to respond within a short timeframe (often 24 hours or less) to assure the CQC that suitable action is being taken to mitigate perceived risk. 

Ridouts can help you by: 

• Assisting with responses to Letters of Intent to provide reassurance to the CQC that enforcement action is not required; 
• Advising on the strength of the case contained within Notices of Proposals (“NOPs”) and Notices of Decision (“NODs”); 
• Drafting comprehensive responses to NOPs and NODs and identifying supportive evidence;  
• Appealing NODs to the Tribunal; including drafting witness statements, attending case management hearings and preparing bundles for disclosure; 
• Representing Trusts at emergency closure hearings in the Magistrates’ Court. 

Following a site visit inspection the Care Quality Commission will produce an inspection report recording its findings.  This includes rating a Trust.  These reports are published and NHS Trusts must display their ratings.   

Negative findings, breaches of regulations or ratings of ‘Requires Improvement’ or ‘Inadequate’ can have a negative effect on a service.  Equally a Trust may be expecting a rating of ‘Outstanding’ but receives ‘Good’ and wishes to make representations about this. 

Trusts have a short period of time to make factual accuracy comments and challenge the ratings made.  If a Trust does not make representations, it will be deemed as accepting the findings. 

Inspections can lead to other enforcement action.  This can happen immediately or following a succession of reports showing non-compliance. 

NHS Trusts can suffer reputational, staffing and financial damage as a result of an inaccurate inspection report.  Poor ratings can lead to the involvement of NHS Improvement and influence whether a Trust enters mandated support or mandated intensive support. 

Ridouts can help a Trust to challenge the factual accuracy of the report and the rationale behind the judgements.  We will work with you to gather evidence and put together as robust response as possible.   

Ridouts can help you by: 

• Drafting factual accuracy comments submissions; 
• Collating evidence in support of factual accuracy comments; 
• Challenging ratings; 
• Rating Reviews ; 
• Pre-action protocol letters and complaints where comments to inspection reports have not been thoroughly or properly considered. 

Sometimes an inquest will be held following the death of a service user in a health and social care setting. 

The purpose of an inquest is to establish facts.  It is not to apportion blame and the conclusion should not use language that suggests civil or criminal liability.  However, there are conclusions and language used that may have a negative impact on the Trust, including findings of neglect. 

Deaths and inquests can prompt action from the police and the regulator and can be used to support a civil claim or criminal action.  

Providers can participate in proceedings and often it is beneficial to do so as it allows a provider to access documentation they would not otherwise be entitled to; ask witnesses questions; make submissions on the scope of the inquest and possible conclusions (if legally represented); and minimise the possibility of a Prevention of Future Deaths report (PFD Report) being issued.  This is a report that Coroners have a duty to issue at the end of an inquest if they believe steps could be taken by parties to prevent deaths arising from similar circumstances in the future.  If a PFD Report is issued to you, a response must be provided.   The PFD Report and responses are usually published. 

Inquests can also attract media attention. 

If managed properly then the risk of damage to the Trust from negative findings can be minimised. 

Ridouts can help you by: 

• Securing providers ‘interested person’ status; 
• Obtaining disclosure; 
• Advising on the evidence; 
• Taking witness statements; 
• Making legal representations to the Coroner; 
• Advising on responses to PFD Reports from the Coroner; 
• Advising on the merits of any further contemplated proceedings; 
• Help to manage media interest in conjunction with a PR firm, where necessary. 

Criminal prosecutions can arise from regulatory or criminal breaches.  Health and social care providers may face action from the Health and Safety Executive (HSE), the Care Quality Commission (CQC) or the police. 

Successful prosecutions can lead to substantial fines, sometimes imprisonment (including those in management positions) and, whether successful or not, reputational damage can occur. 

Prosecutions or threats of prosecution can have a knock on effect, and affect stakeholder relationships and future regulation. 

Being faced with a prosecution can be highly stressful, disruptive and confusing.  Careful steps must be taken to ensure the Trust’s case is put forward clearly and robustly.   

Ridouts can help you by: 

• Advising NHS Trusts on HSE, CQC and Police prosecutions; 
• Seeking advance disclosure from the regulators; 
• Preparing documents for submission to the regulators under statutory and non-statutory requests; 
• Helping NHS Trusts to understand the nature of any interview and whether or not you should attend; 
• Helping NHS Trusts to carefully prepare for any interview; 
• Advice on strategy and approach to the prosecution procedure; 
• Preparing a case should the matter go to court, including any necessary mitigating factors to minimise any resulting fines. 

If an adult is harmed or dies whilst in a Trust’s care as a result of suspected abuse or neglect then an NHS Trust can find itself under the spot light of multiple interested parties. 

This will involve a Safeguarding Adults Board and the Care Quality Commission (CQC) and Trusts may find that the police and coroner are also interested. 

The primary purpose of a Safeguarding Adults Review (SAR) is to learn lessons from the situation however, often a finger gets pointed at the professionals who were caring for the adult when they died, despite there being multiple party input to that care package. 

These processes can be complex, daunting and overwhelming. Ridouts is well placed to advice a provider during a SAR which are often document heavy, detail driven investigations. 

Ridouts can help you by: 

• Advising NHS Trusts on the process to be followed; 
• Advising NHS Trusts in relation to their Individual Management Report in order to protect their position (especially whilst there are on-going regulatory and police investigations); 
• Challenging aspects of the process which are procedurally unfair; 
• Challenging the Overview Report and Executive Summary to ensure they accurately reflect a Trust’s position; 
• Reviewing documentation requested by the regulators and police to advice on whether there are any areas of potential concern. 

The CQC can issue a Warning Notice to NHS Trusts.  This can be on the basis the Trust is deemed to have failed to, or is continuing to fail to, comply with a legal requirement.  NHS Trusts are given the opportunity to make representations about why a Warning Notice should be withdrawn or not be published. Warning Notices are a first step towards the CQC prosecuting a Trust in respect of certain regulations and can be an indication of enforcement action to come. 

If representations are not made to a Warning Notice then the Trust will be deemed to have accepted the findings. The CQC has the power to publish information about Warning Notices and it does so routinely.  This can lead to press attention and reputational damage. 

The CQC can issue Fixed Penalty Notices where an NHS Trust has failed, amongst other reasons, to comply with relevant legislation. Examples include where a service has failed to comply with the duty of candour or where it has failed to make relevant notifications as per the regulations. Each individual breach can attract a fine of up to £4000, which can escalate. 

In respect of Fixed Penalty Notices the CQC has a duty to publish information once the fee has been paid. Again, press interest can lead to reputational damage. 

Ridouts can help you by: 

• Challenging the accuracy of any Warning Notice or Fixed Penalty Notice; 
• Making submissions as to the public interest value of publication of any notice; 
• Supporting NHS Trusts with advice on how to manage the public relations issues relating to press interest in a notice; and 
• Drafting representations as to the validity of fixed penalty notices using documentary evidence and any mitigating factors. 

Ridouts puts on training events for the sector and our lawyers are often asked to speak at external events too.  (You can watch past events here and sign up to our mailing list to be kept informed of events here).   

We also provide tailored in-house training to you and your staff, offering practical advice on key health and social care topics. 

We will liaise with you in order to tailor the session to you particular needs. Our team is will explain issues in both a clear and practical way.  

Many of our clients have noted that the training provided by Ridouts, particularly in respect of preparing for inspection, has proven very beneficial to them and has enabled staff to fully understand the inspection process and empowered them to do themselves and their service justice. 

Ridouts can help you by: 

• Providing bespoke training sessions and materials that are delivered by knowledgeable professionals with wide experience in the sector; 
• The opportunity to interact with a legal professional on a number of issues pertinent to the running of a health and social care service; 
• The ability to deliver training in house or at a location of the provider’s choice.