The CQC have been updating its guidance to providers on a rolling basis as the coronavirus pandemic develops.
Under the Care Quality Commission (Registration) Regulations 2009, providers are required to make statutory notifications to the CQC when certain events happen at a service. The CQC’s coronavirus guidance on their website currently confirms that an instance of coronavirus in a service is not, in itself a notifiable matter. However, it also states:
You only need to notify us if coronavirus affects the day to day running of your business, using the events that stop a service running safely and properly form.
This is slightly out of line with the underlying CQC guidance on statutory notifications. The wording above suggests that only events which have already affected the safe running of the service are notifiable. However, the underlying CQC guidance, which remains unchanged, confirms that it also applies to events which are “likely to” to do so.
Events that stop, or may stop, the registered person from running the service safely and properly
You must notify us about any relevant infrastructure, equipment, premises or other problems that prevent, or are likely to prevent, you from carrying on the regulated activity safely and in accordance with the fundamental standards.
Similarly, the guidance on the website uses rather unhelpful terminology as to what triggers the requirement: if it “affects the day to day running of your business”. Given the vast uncertainty over the progression of the pandemic, and the pace at which the guidance for providers of adult social care is being updated, this inconsistency between the guidance on the website, and the underlying CQC guidance is not particularly helpful. The guidance on the website is, in our view, rather vague and open to differences in interpretation.
On one reading, any instance of actual or suspected coronavirus in a service user or staff member, would be covered. This pandemic and the restrictions which we are currently under is certainly not a normal situation for any of us, and whilst service providers will have infection control measures in place, for many providers the pandemic will already have affected the day to day running of their service.
So does that mean that every provider should be making a notification as soon as they have a service user, or staff member, with an actual or suspected case of Covid-19? Probably not. We doubt that this is what the CQC envisaged when they updated the guidance on their website and frankly the CQC would be overwhelmed with notifications if they did.
A prudent approach would be for providers take the same approach to notifications as before the coronavirus pandemic arose. This would entail considering each “event” in its own right and have consideration to whether it has, or is likely to, be able to prevent them running their service safely and in accordance with the fundamental standards.
It is helpful in this respect also to look back at the relevant legislation. Regulation 18 provides examples of when a Provider is required, by law to notify in the context of “any event which prevents, or appears to the service provider to be likely to threaten to prevent, the service provider’s ability to continue to carry on the regulated activity safely, or in accordance with the registration requirements”. These are:
(i)an insufficient number of suitably qualified, skilled and experienced persons being employed for the purposes of carrying on the regulated activity,
(ii)an interruption in the supply to premises owned or used by the service provider for the purposes of carrying on the regulated activity of electricity, gas, water or sewerage where that interruption has lasted for longer than a continuous period of 24 hours,
(iii)physical damage to premises owned or used by the service provider for the purposes of carrying on the regulated activity which has, or is likely to have, a detrimental effect on the treatment or care provided to service users, and
(iv)the failure, or malfunctioning, of fire alarms or other safety devices in premises owned or used by the service provider for the purposes of carrying on the regulated activity where that failure or malfunctioning has lasted for longer than a continuous period of 24 hours.
Sub-regulation (i) above looks like it is the only example from the legislation which is likely to apply specifically in the context of coronavirus, which might indicate to providers that notification requirements relating to the pandemic will be quite narrow. However, it should also be noted that this list is not exclusive. Providers should therefore continue to ask themselves the key question: does this “event” prevent, or is it likely to prevent, us being able to be able to continue to offer a safe service, in accordance with the registration requirements? In other words, can we meet all our usual obligations and continue to provide safe care? If the answer is no, a notification might be required.
Providers should also remember that all other statutory notification requirements remain unchanged and the CQC expects providers to submit all other notifications as usual.
If providers have any questions about or require advice on notification requirements, please contact Ridouts on 0207 317 0340.