Over recent months, we have noticed an increasing number of notices of proposal to cancel the registrations of providers (or, for providers with multiple locations, notices of proposal to vary conditions to remove locations) being issued by the Care Quality Commission (“CQC”). This is not surprising given that since April 2012, CQC’s new enforcement policy has included a regulatory response escalator which states that cancellation of registration should be considered in the following circumstances:
- Non-compliance with warning notices;
- Non-compliance with compliance actions;
- Multiple breaches/offences with moderate impact;
- Breach/offence(s) with major impact;
- Continued non-compliance;
- Variable compliance over time.
Cancellation proposals can be preceded by, or combined with, a proposal to impose a condition barring new admissions without the prior agreement of CQC (or there might be an urgent imposition of such a condition), although this is not always the case.
The prospect of such enforcement action can be daunting in the extreme. Once registration is lost in relation to a particular service, it is a criminal offence to carry on a regulated activity. However, there is reason to be optimistic when faced with a proposal to cancel a registration (or remove a location) given that the proposal does not take effect immediately (unlike an urgent cancellation or variation of condition). As such, the provider will have an opportunity to put their case forward to CQC. Even if CQC adopts the proposal, there is then an appeal to a specialist tribunal which can take many months to reach a conclusion. The key is to understand the process.
The steps for a non-urgent cancellation, or variation of condition, are as follows:
- CQC serves a notice of proposal on the provider.
- The provider has 28 days to make written representations.
- If the provider does not make representations within that period, CQC will almost certainly cancel the registration or vary a condition of registration at the end of the 28 day period.
- If the provider does make representations, CQC must consider them before making a final decision. Crucially, CQC must make its decision on the basis of the facts at the time of the decision, not the time of the initial proposal.
- CQC decides either (1) to adopt the proposal and proceed with the cancellation/variation of condition or (2) not adopt it in which case the process ends.
- If CQC decides to adopt the proposal, it serves a notice of decision on the provider.
- The provider has 28 days within which to appeal to the tribunal.
- If the provider does not appeal, the cancellation or variation of condition takes effect after the expiry of 28 days.
- If the provider does appeal, the decision does not take effect until the appeal process has run its course. This can take up to 9 – 12 months.
- If the matter goes to a hearing, the tribunal must make its decision on the basis of the facts at the time of the hearing.
In practice, the process means that providers who submit written representations (and if those fail, lodge an appeal) can ensure that the cancellation, or variation of condition, does not take effect for many months. Moreover, if they use that time to improve the service, there is every prospect that the appeal will be allowed or not contested as the tribunal must take into account recent improvements when it makes its decision.
It is essential that providers act swiftly when served with a notice of proposal. The 28 day timetable for making written representations is fixed by statute and it will very difficult, if not impossible, to persuade CQC to give an extension. In particular, it will be important to take urgent legal advice on how to draft the representations. Cancellations are normally the last resort after a long journey of alleged non-compliance. If allegations of non-compliance are not merited, they should be challenged in the representations. However, where allegations of non-compliance are justified, it will be important for providers to show insight. Providers who build confidence by accepting shortfalls and providing a credible route to compliance are more likely to win over CQC or, if necessary, the tribunal.
In summary, a notice of proposal to cancel a provider’s registration (or remove a location where there are multiple sites under a single registration) is not the end of the road. Providers who act quickly and seek legal help in drafting written representations may find that the notice is not the sunset of their business, but rather a new dawn.