No one would argue against the need for regulation, particularly in “care” where the imbalance in relative strength is very marked.
However, the questions are now arriving, fast and furious, as to the nature, scope and extent of regulation and the quality and integrity of the regulator, whether it be the Police, the Care Quality Commission (“CQC”), the Financial Conduct Authority or one of the other multiple regulators or quasi-regulators who are steadily appearing and encroaching on the ability to deliver and innovate.
The past two years have seen a massive increase in regulatory intrusion and invasions of basic personal and business freedoms. This has been justified on the back of the largest contextual public health crisis since the Black Death some eight hundred years ago when there was a very different national governance structure to that which we have become accustomed to in the 21st century.
Government have seized upon the crisis of the moment to impose upon a willing population, terrified between a wish for immortality and a perception of human rights to include comfort and affluence. This has translated into very substantial curtailment and intrusion of some basic libertarian principles as to the rights of people to live and enjoy lives as individuals would wish. This draconian fist has cascaded down to individual regulators, whose thirst for command and control is seen to be unquenchable.
As an aside, we see this clearly reflected in the replacement, as regulators, of thoughtful intellectual academics with robust police –type enforcers. Reflective and proportionate intervention is being replaced with strict literal compliance demands.
The move is clearly seen in the development of the attitude of the CQC over the pandemic period, although the seeds of this were sown before the onset of crisis.
There is an interdependent relationship between the legislature and the executive, to hereunder, the latter need the former, but the former cannot control the latter. This is based intellectually on “good intentions.” One knows where that leads. Historic examples are many and various.
The common law has developed over the centuries to be a flexible and cautious reflection of changing generational and situational circumstances, so that the proportionate and careful management of change is processed so as to achieve broad consensual acceptance. This philosophy finds little favour with those who would wish to impose their current and time limited desire to control without effective challenge. It is easier to point to literal non-compliance than to carry your argument with persuasion in a court of judgment which measures the societal judgment of the extent to which (mis)conduct is sufficiently egregious to merit the consequence i.e. to “make the punishment fit the crime.”
It is no longer a “safe” operational policy to dismiss regulation on the basis that one should not annoy one’s detractor on the perception that they will go somewhere else, and are, in any event, relatively powerless. They will not and they are not.
That is not to say that a policy of denial and defending the indefensible is anything other than folly. However, appeasement is the route to disaster. As Churchill said, “A appeaser is a man who feeds a crocodile in the hope that it will eat him last.”
Careful attention to reasoned and sensible disagreement is an essential course.
Obviously the manifestation of abuse of power will be more readily observed in the actions of the executive rather than the legislator. However, that abuse cannot germinate without underlying legislative material. We will review this under two separate sections:
- The misuse of legislation to found unwarranted intrusion in professional business; and
- The manifestation of double standards among treatment of the regulated or as between how the regulator deals with others and how it behaves itself.
Legislation
- Vaccination or Not!
A combined understanding of health and safety and health and social care law reveals that providers duties to protect staff and, more importantly, residents was easily achievable in relation to the incontrovertible benefits of the COVID vaccine, but in a proper individualised risk assessed manner. Instead, we saw a panic stricken and vacillatory Government overreacting to apparent public opinion and encouraging in enthusiastic attacks on providers (who were not to blame) concluding in the probability but not the certainty that risk assessment would trump law enforcement. Disappointed cowardice from those nominated to take a prosecution lead.
- Care Home Visiting – Whose home is it?
No sensible provider would wish to unnecessarily restrict its customers being visited by their loved ones. Absolutely obviously the provider had the right to control who comes to their premises. Equally, the provider has the right, and more importantly, the obligation to protect its customers and the wider staff from avoidable danger by sensible, reasonable and flexible policies. Those can and should be applied with proportion, discretion, explanation and sensitivity. COVID obviously focused attention and changed the context, but the principles remained.
Panicked by noisy complaints from those whose unbiased objectivity was not obvious and frightened by largely unjustified attempts to cast blame for a less than optimal to pandemic management on care (homes which already mirrored shock reaction everywhere), government started to interfere in day to day management decisions with a knee jerk matched only by a lack of objective knowledge. The CQC, seeing an opportunity to pound aggression on providers, piled in with unjustified threats to “enforce” against providers who did not accept their misunderstood position. This was without legal justification or operational merit from either government or the CQC.
Insensitive restrictions and potentially dangerous admission could have been better managed by a careful appreciation of the law which required no supplements.
- Punishing Lack of Managers Registration – Understanding the Law!
All care homes in England must have registered managers. Such became settled in 2002 and prosecutable in 2010. The need for such provision is questionable at least. Many homes will not have registered managers frequently for many good reasons. The CQC has powers to prosecute or impose tantalisingly inexpensive fixed penalty notices for breach. How could any regulator of the modem paradigm resist the opportunity to stigmatise and punish often without operational justification.
All this and CQC follows a flawed policy seeking to intervene simply on an absence of managers with a certificate; simple and easy to collect. The problem is that that does not follow the law. The offence is failure “without reasonable excuse” and the burden of proof lies both on the CQC for both the substance and lack of excuse and that excuse being unreasonable.
Those who respond robustly are not pursued. They should never have been troubled at all.
- Breach of Regulation – Who judges? What consequences?
The provision of health and social care services is suffocated with a plethora of regulations with a whole variety of gravity for misconduct and addressing conduct which might be objectively viewed with a wide variation of accepted understanding of egregious.
All actual regulations if breached may result in prosecution. Prosecution is rare but decisions to prosecute or not are inconsistent but fines may be very substantial.
That is absolutely fine. After all, we can rely upon the criminal courts to act as an appropriate check and balance to counter officious and inappropriate action! Action should not be taken unless with a good chance of securing a conviction, and, objectively taken in the public interest. Spiteful prosecution for issues which the public would not judge to justify criminal sanction should not occur.
However, the publicity arising from the announcement of decision to prosecute or consider prosecution is highly damaging. Moreover, the CQC fashioned rating system and its rules encouraged severe adverse commercial outcomes if there is a simple allegation of breach. No matter the relevance or triviality a statement of “breach” has the consequence that overall rating cannot, by CQC dictate, be better than Requires Improvement.
The CQC says that Requires Improvement means not just embedded as consistently Good. However, the public and media regard Requires Improvement as very bad. Those responsible for purchasing decisions will very often decline to buy on that ground alone. The stakes are very high.
Why “breach”? The test for cancellation of registration is “failure to comply with regulations.” That is altogether softer language. Why not use it? Why not build in a degree of controllable proportionality into decision making.
A recent letter to Ridouts from a CQC lawyer stated that “Breach” was determined by individual inspectors using their skill and judgment. This made clear that the individual judgment would be determinative of the “breach” issue. That is very obviously wrong. It is legal process not an individual inspector’s judgement which determines criminality. Nonetheless, it demonstrates where the CQC has reached in to control.
This demonstrates dramatically where such statements must be noticed, analysed and be the subject of a reasoned, evidence based, response. That which starts small can grow into grave danger. Ignore at your own peril.
Double Standards
I will highlight two examples:
- Complaints Procedure
- Allegations of Closed Culture
The two are linked.
- Complaints Procedure
Since the beginning of regulation in this sector in 1927 there has been an expectation of availability of a method for effective complaint which deserve and inspire the confidence of the customer.
Complaints should be and should be seen to be taken seriously. Complaints should be open and transparent. Complaints should not be stifled in fact or in threats. Complaints should be investigated independently, openly and in detail with clear evidence based reports of conclusions.
Any provider who fails to meet these standards may expect severe criticism from the CQC. Regulatory enforcement actions are publicised criticism with adverse commercial consequence can and should follow.
Contrast this with the CQC’s response to criticism and complaint through its own complaints procedure. Every trick and turn is taken to word, delay, prevaricate and dodge. Spurious excuses are raised, which themselves are not capable of effective challenge. The experience of most of our clients is the CQC complaints procedure is not worth the paper upon which it is written on. Were providers to adopt a similar stance they would be rightly and justifiably criticised
CQC rightly speak of such treatment of criticism as evidence of what they term a …
- Closed Culture
Such a culture is used correctly by the CQC to evidence serious and significant evidence of a failing service. A service which will not accept criticisms and use the experience to learn is likely to be a service in which will be found significant operational failure.
By not removing this “beam from its eye”, and welcoming serious and courteous challenge the CQC diminishes the confidence in which both providers and users may place in its system.
That notwithstanding the closed culture is used as a tool to support and reinforce the over intrusive and dangerous micro-management of care services.
Conclusion
The thesis of this paper, illustrated by the examples I have set out to attempt to show in context the real risk to health and social care businesses, will I hope to strike a note with all levels of management.
Criticism without solutions is pointless rhetoric. The solution is vigilance and readiness to understand and respond to challenge. In our sector there are very few reliable routes for challenge. That does not mean that falsehoods and wrong judgments should not be challenged. They should.
All services should take operational regulation very seriously. Resources should be deployed to recognise every challengeable criticism and to response on the record even where the response is ignored or dismissed. The CQC will always dismiss challenge down the line, without formal challenge when the criticism is made.
Our experience is that those who challenge formally and fairly and in a timely manner will find that regulatory microscopes move away to a softer target who may be more compliant.
For any more information or if you would to discuss any concerns surrounding regulation of your care business, please contact Paul on paul@ridout-law.com or 0207 317 0340.
