At Ridouts, we are seeing an increase in the use of ‘letters of intent’ as the CQC moves away from timetabled inspections towards a more risk based approach.
A letter of intent indicates that the CQC has concerns about a service. The will say that the regulator is considering whether to use its powers pursuant to the urgent procedure (for suspension, or imposition, variation or removal of conditions of registration) with immediate effect under Section 31 of the Health and Social Act 2008.
Section 31 allows the CQC to serve a notice of decision on a provider if it has reasonable cause to believe that, unless it acts, any person will or may be exposed to the risk of harm.
Often the heading of a letter of intent is ‘Possible Urgent Enforcement Action – Section 31 of the Health and Social Care Act 2008’ and the opening paragraph reads ‘I am writing to notify you of serious concerns which have been identified…’, which will usually have been during an inspection.
Responding to a letter of intent
The letter of intent then asks the provider to respond to the issues raised and put forward an action plan (and documentary evidence) to provide assurance to the CQC that the risks identified have already been removed or are immediately being removed. As part of the action plan, providers are asked to set out a specific time frame for implementing each action and state who will be doing it.
The CQC only allows a very short time period to respond to letters of intent, often just 24 hours, so if your practice receives such a letter it is important to act quickly.
Your response should set out a clear plan addressing the CQC’s concerns, explaining actions already taken and actions that will be taken with timeframes specified.
However, in cases where you do not agree with the CQC’s alleged findings they should be challenged and it is sensible to consider seeking legal advice at this stage. Challenging any inaccuracies found by the CQC at the outset can help to minimise the effects of further enforcement action later down the line.
The CQC’s new strategy – smarter regulation
On 7 January 2021, the CQC published a consultation paper on its new draft strategy that it aims to implement over the next five years. One of the themes of the strategy is ‘smarter regulation’.
The CQC’s consultation paper states: ‘We now have IT systems that can handle large amounts of data, which will enable us to use artificial intelligence and innovative analysis methods. This replaces more manual handling of data and will ensure we interpret data in a more consistent way.’
There is a risk that as the CQC move towards ‘smarter regulation’ by relying on IT systems it could mean that there is heightened scrutiny of data. An example could be a situation where the CQC has remote access to patient records and is able to have a ‘free run’ at reviewing records without understanding the full context.
A client recently sought our advice when the CQC sought to impose a condition on its registration that the provider undertake an independent review of all patient records on the basis that the regulator considered that three patients’ records had not been adequately reviewed by GPs at the practice.
There were over 6,000 patients registered at the practice and we successfully argued that such a review was disproportionate and overly burdensome. The condition imposed instead was for our client to secure completion of the review of records the CQC had identified.
Use of data
If the CQC relies on remote access to patient records to identify perceived risks, this could potentially lead to information being skewed and increased enforcement action, such as letters of intent, as a result. It is therefore important that the data and information gathered by the CQC through its IT systems is verified before it is allowed to impact on the regulator’s assessment of risk within a service.
If a letter of intent is received, although it is important to act quickly and meet the deadline set by CQC, providers do not need to panic.
Often if a robust action plan is submitted to CQC which sets out the actions taken to make any necessary improvements and reduce risk to service users, it can prevent further serious enforcement action being taken.
If you receive a letter of intent from CQC and require assistance or advice in relation to responding to it or challenging other CQC enforcement action, you can contact Ridouts at firstname.lastname@example.org or by calling 0207 317 0340.