Questions and Answers

Are you involved in an Inquest?  Do you want to increase your local authority contract fees? Have you received a draft inspection report you disagree with?  Is the CQC seeking to cancel your location’s registration?  Have you been called to a safeguarding meeting?

If you have questions about similar issues, the Ridouts’ team provides answers below to help guide you.

For tailored advice, specific to your individual circumstances or have a question that we haven’t answered, please contact us directly or request a call back here.  

CQC

The Care Quality Commission (“CQC”) may issue a Letter of Intent to a provider where it has concerns about a service.  Usually the Letter of Intent indicates that the CQC is considering taking urgent action under Section 31 of the Health and Social Care Act 2008 (“2008 Act”). 

 

The provider is asked to respond to the issues raised and provide an action plan indicating that appropriate action has been, and will be, taken to mitigate any perceived risk. 

 

It gives the provider a short window of opportunity to provide assurance that the CQC doesn’t need to take further action.   The timeframe that the CQC allows for providers to respond to these Letters of Intent are usually very short, often 24 hours. 

 

The Letter of Intent will state that if the CQC isn’t provided with the assurances it requires it can take urgent action to suspend your registration or add, remove or vary conditions to a provider’s registration.  This includes removal of a location where a provider has multiple locations on its registration and so in effect means cancellation of a location’s registration. 

Providers should take these Letters of Intent very seriously but should also not panic.  Timeframes in which to respond are often tight but a very thorough response should be provided. 

It is important to set out a clear plan addressing the CQC’s concerns, noting where action has already been taken, if action is to be taken (with short but achievable deadlines) and demonstrate how the risk of such matters arising again will be mitigated. 

Providers should consider seeking legal advice at the Letter of Intent stage as a well-crafted response, with reference to the legal requirements of the regulations and legal standards that CQC must prove in order to justify the action it seeks to take, can provide food for thought to the CQC and often put the brakes on any enforcement action.

With any form of enforcement action, whilst the burden of proof is on the CQC to demonstrate that standards have fallen below that required under the relevant legislation, the reality is that providers must put forward their position to demonstrate why the CQC is not correct in its assumptions or the action it is seeking to take.  Responses should be careful not to provide ammunition to CQC to justify it taking action beyond the Letter of Intent stage and this is where legal advice can be invaluable to provide the right balance.

At Ridouts we often see the CQC requesting information from providers which it intends to use for the purpose of building a prosecution case. The context of this request is that the CQC is seeking to utilise the provider’s resources and knowledge to obtain evidence which assists its potential proceedings against the provider. This is not a cause which you are likely to want to assist therefore it is strongly recommended that you take a moment to consider whether you are under any legal obligation to provide the requested information.

A legal obligation arises when the request is made under section 64 of the Health and Social Care Act 2008.  Section 64 of the Health and Social Care Act 2008 allows the CQC to request from a provider “any information, documents, records (including personal and medical records) or other items which it deems necessary or expedient to have for the purposes of any of its regulatory functions.” While the majority of legislation tends to be fairly convoluted in what powers they grant, this section is clear in its purpose to provide the CQC with the power to request any information within the context of its regulatory function.

The sticking point is that a failure to comply with a section 64 request may result in a provider being found guilty of an offence and responsible for the payment of a fine not exceeding £2,500.

Its grounding in legislation, and the fact that it is accompanied by a financial penalty, means that a request under section 64 of the Health and Social Care Act 2008 should be afforded the formality of a letter which clearly notes the CQC’s use of its section 64 powers and outlines the information requested. Despite this, it is not uncommon for the CQC to make a request for information in a format which alludes to formality but simply wields false authority.

Accordingly, when receiving a request for information you should take care to consider whether you are under a legal obligation to provide the requested documentation or whether it is merely a request to which a polite ‘yes’ or ‘no’ will suffice. Even if you determine that you are under no legal obligation to respond to the request, we would caution against too flippant a response and strongly encourage careful consideration of the broader purpose behind the request. 

In brief:

  • If the request falls under section 64 of the Health and Social Care Act 2008 then you are obliged to comply with the request.
  • If not, then you are under no obligation to comply with the request.
  • Always – no matter whether there is an obligation or not – consider the circumstances or purpose of the request.
  • If in doubt, do not hesitate to contact Ridouts, we are well versed at navigating requests from the CQC and would be more than willing to assist with addressing the request.

For more information, click your sector below.

Adult Social Care Services
GP Practices
Private Healthcare
Dental Practices 

There is no need to panic, as a Notice of Proposal (“NOP”) is only the first step in a series of actions which the CQC must take before the proposed action materialises. In essence, this is not a forgone conclusion and there are avenues which a provider may use to challenge this.

When a provider is issued with a NOP, they have 28 calendar days from the day the NOP is served (and there are specific rules about service, so you must check this carefully) to challenge the allegations made in the NOP.

In these 28 days, providers will want to gather as much evidence as possible to demonstrate that the  CQC need not remove the location from the provider’s registration.

The strongest arguments in opposition to NOP will be that the factual basis which the CQC is relying on is incorrect or misconstrued in some way.  The other argument that can be made is the information relied on is outdated, the perceived issues have been remedied in any event, and therefore the notice is redundant.

Even if the CQC decides to reject the representations made in challenge to the NOP, they will need to issue a Notice of Decision (“NOD”), which entitles a provider to a further 28 calendar days to lodge an appeal to the First-Tier Tribunal to challenge the action the CQC has decided to take.

The CQC historically takes quite a while to respond to NOPs, which gives the service even more time to improve. Thus, by the time the CQC takes its decision it should be reassessing the service to ensure that it is basing its decision on the most up to date position of the service.

Regardless, the CQC will be back (or they should be) to decide if the perceived concerns have been addressed to its satisfaction. Challenging the NOP is the best way to put forward your version of events, correct any misunderstanding by the CQC of the evidence that they are relying on, and to prompt the CQC to re-evaluate. This will also put on record your disagreement with the CQC’s action should the matter proceed to the First-Tier (Care Standards) Tribunal.

When you have received your draft inspection report, you should highlight and scrutinise every sentence in the report that you, as a Provider, feel is factually incorrect and should be challenged. Anything that is not an accurate, fair, or a true reflection of your service as a Provider at the time of the inspection should be considered.

A provider only has 10 working days to challenge the draft inspection report through the Factual Accuracy Challenge process.  It is important to understand when the draft inspection report was served on you as there are rules about service and this will affect when your 10 working days will start to run from.

The Factual Accuracy Challenge needs to be robust and include corrections in accordance with Sections A, B and C of the current standardised Factual Accuracy Challenge form [as at February 2023].  In section A you need to include typographical or numerical errors or, for example, incorrect job titles. In section B you need to include factually inaccurate content and how this has contributed to a judgement incorrectly and why the judgement should change. You also need to provide supporting evidence here. In section C you need to include additional information, or information that was omitted, which you think the CQC should consider.

When drafting a robust response to the CQC, you should consider what was in place at the time of the inspection. If the CQC made an allegation on the day of inspection, and you as a Provider rectify this after the inspection and submit evidence of this being addressed, this will not have an effect on the allegation made against you.

Some of the fundamental objectives of any Factual Accuracy Comments is to correct factually inaccurate information, remove breaches of regulations, and improve ratings, where possible.    If you have a breach of regulation, then this will usually limit the overall rating you can receive to ‘Requires Improvement’, so it is important to try and demonstrate that you are not in breach of the regulations.  In this scenario, it would be important to focus on submitting a robust Factual Accuracy Comments with evidence to remove the two different breaches.

If you disagree with what the CQC is saying, then it is important that you submit evidence to demonstrate that the CQC is wrong.  In addition, when collating evidence it is important to note that the CQC will scrutinise your own evidence so it is vital you check any evidence for potential ‘red flags’ prior to submitting. You should only submit evidence which relates to things that were in place at the time of the inspection. The importance of a robust Factual Accuracy Comment challenge is in the quality of the evidence you submit, and not the quantity.

For more information, click your sector below.

Adult Social Care
GP Practices
Children’s Social Care
Independent Healthcare
NHS Trusts
Dental Practices 

Warning Notices are one of the CQC’s civil enforcement powers and it is vital that you act quickly upon receipt. The CQC has the discretion to issue a Warning Notice if there is a breach of a regulation, a section of the Health and Social Care Act 2008, other relevant legislation or a condition of registration. Also note that the CQC can issue a Warning Notice for a serious breach that occurred in the past, even if the breach has since been rectified. If the Warning Notice relates to a continuing breach, the CQC should state the timescale within which you must comply. The CQC will check on whether you have taken action to comply, which may involve an unannounced focused inspection. The CQC can publish a summary of the Warning Notice on the relevant location page on the CQC’s website and usually notified local media outlets. In most cases the CQC refers to enforcement action in the inspection report that is published on its website.

Act quickly if you want to challenge the Warning Notice as you have only 10 working days from the date the Warning Notice is served on you, to submit written representations. Representations can include that the Warning Notice contains error; is based on inaccurate facts; does not meet the legal test or for some other reason it would be unfair to publish the Warning Notice. There is no right to appeal against the issuing of a Warning Notice. Submitting written representations is your only opportunity within CQC’s internal processes, to challenge a Warning Notice. Likewise, there is no right to appeal against the CQC’s decision to uphold a Warning Notice once it has considered a provider’s written representation; and to further challenge the CQC one would have to commence judicial review proceedings in the High Court.

A Warning Notice can be an indication of further enforcement action to come.  It is recommended that you seek legal advice in order to protect your interests and safeguard your reputation and business.

For more information, click your sector below.

Adult Social Care
GP Practices Independent Healthcare
NHS Trusts
Dental Practices 

Yes, once the inspection report has been published you can request a Rating Review.  The only ground for requesting a Rating Review is that the CQC Inspector failed to follow the CQC’s own internal processes for making a ratings decision and aggregating them. If you wish to request a Rating Review, the Registered Manager/Nominated Individual should complete the online web-form, accessed through the portal within 15 days from the inspection report being published. The CQC also provides a link to the online form in its letter enclosing the final inspection report.

Registered Managers/Nominated Individuals should be aware that a Rating Review has a word limit. It can only be 500 words and this should cover everything – which rating(s) you wish to challenge and why and how the Inspector has failed to follow the CQC’s processes. A Registered Manager/Nominated Individual can only submit one request for a Rating Review and only the most recent CQC report can be challenged.

Once you have submitted a Rating Review, the CQC will consider whether the request meets the ground for review.   If not, the Rating Review request will be refused and the Registered Manager/Nominated Individual will be notified. If the Rating Review request does meet the ground for review, an independent CQC staff member (e.g. a staff member not previously involved in the inspection) will review the aspects of the process alleged not to have been followed correctly.   The CQC may also rely on independent reviewers, where required. 

Once the CQC has reached a decision, the outcome of the Rating Review challenge will be issued to the Registered Manager/Nominated Individual.   Where a rating (and inspection report) is changed, the CQC’s website will be updated as soon as possible. It is worth noting that rating(s) can go up as well as down, and the CQC aims to complete all Rating Reviews within 50 working days. Whilst the Rating Review is taking place, the CQC will display a message to this effect on its website and the inspection report being challenged will remain on the CQC’s website.

Once a Ratings Review has been completed, there are no further means of challenging an inspection report except via Judicial Review. If a Registered Manager/Nominated Individual has simultaneously made a complaint against the CQC or is seeking to challenge the enforcement action, the request for a Rating Review will be paused until these outcomes are known.

It’s important to ensure that a thorough Factual Accuracy Comments (“FAC”) is submitted as you cannot use a Rating Review to have another go at challenging factual accuracy of a draft inspection report. 

For more information, click your sector below.

Adult Social Care
GP Practices
Children’s Social Care
Independent Healthcare
NHS Trusts
Dental Practices 

The CQC can prosecute care providers for an injury that has been sustained to a service user. Indeed it is the lead prosecutor in the UK for providers that are registered with it. The CQC has brought several prosecutions against providers in similar circumstances where injuries have occurred following falls within care settings.

In order to bring a prosecution, in respect of a fall where an injury has been sustained, the CQC has to be satisfied that: 1) harm has occurred which could have been avoided; and (2) that a service user has been exposed to a significant risk of harm. CQC’s intention to prosecute is simply that, an intention. 

The burden of proof is on the CQC to prove its case against you as the provider and that burden must be discharged to the criminal standard, that being beyond reasonable doubt. This means the CQC must have sufficient evidence upon which it can base a decision to issue a provider with a criminal charge and that charge must have a good prospect of succeeding if it is brought.

The ultimate sentence, if a provider is found guilty of a health and safety offence, such as a fall where an injury has been sustained, is an unlimited fine. In determining the amount of fine the court uses sentencing guidelines which sets out the approach that the court must take in making a determination. They include looking at the blameworthiness of the provider in relation to any incident, how serious the risk of the harm occurring was and what the likelihood of harm occurring was at the time of the incident. The court must also consider the turnover of the provider when sentencing a provider that is judged to be guilty of an offence along with any factors which mitigate or aggravate the circumstances such as actions of the provider. Considering the size of the ultimate fine providers may choose to enter a guilty plea at the earliest possible opportunity as that will likely entitle them to a reduction of the fine by a third.   However, legal advice should be taken.

It is a defence to the alleged offence of not providing safe care to the service user and others if the provider can prove that they took all reasonable steps and exercised all due diligence to prevent the breach of the regulation for which the provider is accused.  This is potentially a high bar to meet given the comprehensive nature of the way in which the law is worded.

For more information, click your sector below.

Adult Social Care
Private Healthcare
NHS Trusts 

If you intend on recording a telephone conversation with an inspector, you must ask their express permission before doing so otherwise it cannot be relied on as evidence. An alternative to recording telephone conversations is to take a detailed note of what was said during the conversation.

[Date answered: December 2020]

Safeguarding

Section 42 refers to section 42 of the Care Act 2014.  This places a duty on a local authority to make enquiries, or have others do so, if it has reasonable cause to suspect that an adult with care or support needs is experiencing, or is at risk of, abuse or neglect and as a result of those needs is unable to protect themselves against the abuse or neglect or the risk of it. The aim is to decide what, if any, action is required to help or protect the adult.

The whole purpose of a section 42 investigation is to eliminate or reduce current risks of abuse or neglect in relation to identified individuals. Therefore, the risk must be current (not in the past) to ensure compliance with the legislation. It would be wrong for a local authority to investigate issues under the remit of section 42 if they are no longer current. There must also be credible evidence in relation to individual service users. Simply stating that there are general safeguarding concerns is not credible evidence.

It is important that Providers take safeguarding investigations seriously and engage with the process. Providers can be subjected to intense scrutiny and investigations have been known to get out of control if sufficient oversight of the process is not in place.

If a Provider has been asked to attend a meeting it is recommended that they request as many details as possible in advance of the meeting. This should include a meeting agenda, a list of individuals invited to the meeting and, most importantly, details of the safeguarding matter being investigated, including details of any service user(s) and other individuals involved. This information is not always forthcoming but it is crucial that Providers knows the allegations in advance, to allow them to prepare and contribute meaningfully to meetings.

If a Provider has been invited to a meeting at short notice it is worth requesting whether this can be postponed to allow sufficient time for them to properly prepare, if required. The local authority is not required to do this but it is worth requesting, if needed. Providers can also request to have someone accompany them to meetings – whether this be a lawyer or another representative from the organisation.

The quality of official minutes from safeguarding meetings is very variable. In some instances they can take a long time to be produced (if at all), they may not always accurately reflect discussions and they may not go into much detail. As such, it is recommended that the Provider has an additional person attend who is not directly involved in discussions to ensure an accurate contemporaneous note of discussions and agreed follow-up actions is made.

It can be helpful for Providers to seek legal advice when facing section 42 investigations – particularly if the local authority is being difficult. A solicitor can liaise with the safeguarding team and manage requests for information or evidence. A solicitor’s presence at a safeguarding meeting can help ensure that the local authority behaves appropriately and can hold them accountable if not.

Each local authority will have its own published adult safeguarding policy that sets out its legal duties under the Care Act 2014 and the process to be followed once a decision to proceed to a section 42 investigation has been made. Providers should check what their local policy says and ensure the local authority is following this to help ensure a fair process.

For more information, click your sector below.

Adult Social Care – Adult Safeguarding Investigations and Embargoes
Adult Social Care – Adult Safeguarding Reviews
Independent Healthcare 
NHS Trusts 

It is very important that matters are investigated swiftly. There is no reason that a provider should not conduct their own investigation unless the police have required “no enquiries”, in which case the police must be pressed to move very quickly. The Provider needs to know the outcome and then take action. Suspension should be neutral. The enquiry should be independent. The matter does not have to be established to the criminal standard.

If dismissal is indicated as one of a range of reasonable options after enquiry and disciplinary hearings, dismissal should occur. If the enquiry exonerates the staff member or suggests action less than dismissal, the staff member should be brought back immediately and the allegation should be kept confidential.

The Local Authority should be informed that an enquiry is being conducted, under suitable confidentiality undertakings, receive any report and be advised of action taken. If the police are involved be even more cautious and take legal advice.

[Date answered: November 2020]

There are often multiple stakeholders that take an active interest when a safeguarding allegation is raised. You note that you are often asked to share the same information with different bodies. It is often the case that these bodies have slightly different agendas and therefore, make nuanced requests which can make providers feel that they’re being asked for the same documents over and over again. It is important to consider each request on an individual basis as different bodies have different rights and powers to request information (not all connected to the safeguarding investigation itself) and there may be restrictions on you providing it, such as data protection reasons or reasons why you choose not to provide it. It is important that information is not shared across all bodies without first considering what is being requested, why and whether it should be provided. Whilst this may feel burdensome, it will provide you, as the provider, with more control over the situation and enable you to be more fully informed about what each body is doing and why. Providers often report that they are kept in the dark about what is happening and this enables you to understand what action is being taken and is one way of enabling you to have input into the process. Whether the same information is being requested or each body is asking for similar but slightly different information it is important that the requests are centrally co-ordinated by one person from the provider. A central record of what has been requested, by whom and what (if anything) has been given to each body should be kept, along with a copy of what was actually sent. One of the main reasons that providers can feel overwhelmed in because each external body will make requests of different people in the organisation and then it is difficulty to keep track of what was provided to who and when. By asking all persons to go through a central person, this may enable time to be saved as documentation may have already been gathered and provided to another so the task does not have to be started again. It also allows for consistent messaging on the situation to be provided to all bodies which is important when action can arise out of safeguarding investigation. You mention three bodies: the safeguarding team can decide to place an embargo on your service, quality monitoring can cancel your contract if it deems the care has not been provided in line with the contract requirements and the CQC can take enforcement action if it deems that the relevant regulations have been breached or persons may be put at risk. It is important to treat each request on its own merits and address the concerns raised by each.

[Date answered: November 2020]

What some local authorities fail to appreciate is that sharing the outcome of a safeguarding investigation with the health and social care providers involved is vital. How else will a provider know about a risk or be able to put measures in place in order to stop or manage the risk in future? Outcomes such as this can help to build and develop services. Health and social care providers will be aware that safeguarding investigations can take weeks, if not months to complete and so it is important that they pursue the relevant local authority representatives for information and progress on the matter under investigation. This is not pestering, it is simply opening up mutual channels of communication in order to improve the information sharing process and build better relations generally. Some aspects of a safeguarding investigation will not be shared with providers, for example, where the identity of the whistle-blower is being protected or there are documents that contain other information that might compromise the privacy or confidentiality of people involved. If you believe that the local authority holds important information about your service or one of your service users that you feel is relevant then you should make a formal request in writing to receive it. If the request is declined, ask for a written rationale for the decision and seek legal advice.

[Date answered: November 2020]

Safeguarding is, by its very nature, a highly individual issue. It is designed to protect people in a vast range of different scenarios and authorities simply cannot apply a one size fits all approach. Each safeguarding investigation will, to some degree, have a bespoke fact pattern and an element of inconsistency in approach is therefore inevitable.

Variation between different safeguarding authorities is also a natural consequence of our system of local government. Rightly or wrongly, differences in budgeting and quality of staff will to some extent dictate how each authority – and each officer – approaches engagement with Providers on safeguarding matters.

Unless and until there is a complete overhaul of how local government and safeguarding operates, inconsistencies and confusion are likely to persist for Providers. They can, however, take back some control with a few practical steps:

  • Maintain positive relationships with the SG teams that you will work with, and the individuals in those teams. The better professional relationship you have, the better informed you are likely to be, and the more likely you can ask the LA and question why they are doing certain things without giving rise to confrontation or disputes. This is also likely to generate credibility with the relevant safeguarding authorities and encourage them to be more open and transparent with you in return.
  • Know your safeguarding teams. Most publish vast amounts of information on their own approach and to some extent, you can forsee how approaches will vary between authorities. For example, if there is a big scandal in a local area which is in the press, you can expect that authorities in that area may be more demanding on investigations relating to that topic. If you know individual safeguarding officers, you are likely to have a good idea what sorts of requests they will make from past experience. This does not make inconsistency any better, but it may help to decrease the frustration which Providers feel.
  • Decide what your approach to engaging with authorities will be and be consistent. Do not let others’ inconsistencies dictate how you handle safeguarding matters and investigations. Provided you have suitable policies and procedures in place and these are followed, this should put you in good stead. If a safeguarding authority asks you to do something entirely out of the ordinary or something your own policies would not normally allow, you should and can challenge that request. There might be a good explanation which may justify you being flexible and cooperating with unusual requests. There might not be. Only when you know the reasons can you decide what the right approach should be in response. Taking a thorough and consistent approach yourself should help justify refusing requests where it is right to do so. Decisions taken on safeguarding matters should be documented contemporaneously so that they can be justified.
  • Know your rights and obligations and relevant guidance, and be prepared to stand up for them. If you believe you are sticking to guidance and are asked by Safeguarding authorities not to do so, you can and should challenge that. If they are asking things of you which you believe is beyond their powers, say so. This can often be done non-confrontationally. Many Providers are (entirely understandably) keen to do everything a Safeguarding authority asks of them and are reluctant to challenge requests but this is often not in the Provider’s interests. There is, of course, a balance to be had between maintaining good relations and standing up for yourself.
  • Remember that other rights and obligations might be relevant and may not allow you to meet every request. Other individuals involved in investigations – directly or indirectly – will have rights which may require protection by law. Most providers will, for example, have employment law obligations which do not suddenly fall away during a safeguarding investigation. Other legal obligations, or the protection of rights of others, may in some cases be a very good reason to refuse certain requests. You should not assume that you can meet every request a safeguarding authority just because they ask because they may not be considering wider obligations on Providers.

It is always worth remembering when engaging with safeguarding authorities – as with any regulatory body with investigative powers – that there is always a balance to be had. It is right to cooperate, and maintaining positive working relationships is likely to go in favour of Providers in the long term. However, any safeguarding investigation can have potentially very serious implications for a Provider and oversharing – or bowing down to every demand which a safeguarding officer makes when there is no requirement to do so – can put Providers at risk of (often unnecessary) self-incrimination. If in doubt, get specialist legal advice.

[Date answered: November 2020]

The opinion and judgment of the investigating officer in a safeguarding report is a factor but the conclusions of the report should always be grounded in the evidence upon which the opinion is founded. Providers should seek to engage thoroughly with the safeguarding process and present evidence and findings borne out of any internal investigation which the Provider has conducted (assuming there is no reason why an internal investigation could not be carried out for example because of police involvement). Supporting explanations of evidence should also be provided, even if such explanations seem obvious to the Provider. Ensure also that the manner in which you present the evidence is clearly marked and easy for a third party looking at it to understand. If your evidence and/or the findings from any internal investigation are not proportionately considered within the final safeguarding report, do not consider this as your final point of challenge, as a public body the Local Authority are duty bound to consider information placed before it. If the investigating officer is refusing to change their opinion based on your substantiated representations, consider escalating your concerns to the most senior person with responsibility for the provision of adult social care within the Authority. We are well versed in challenging safeguarding reports where outcomes are considered to be incorrect and would be happy to assist any Provider with making such challenges.

[Date answered: November 2020]

Inquests

If a member of staff has been called as a witness to give evidence at an inquest, it can be a daunting prospect but the right support and preparation can help to alleviate concerns.

It is important to note at the outset that the purpose of an inquest into a death is to establish facts in relation to who the deceased was, when and where they died and how they came about their death. It is not to apportion blame. However, that said, information often emerges during an inquest which may be used to support a civil or criminal claim against the provider. If the Coroner issues what is called a ‘Prevention of Future Death’ report or adds a neglect rider to their Conclusion, this can cause serious reputational harm to a business. Therefore, it is important to take an inquest seriously.

Sometimes a Coroner will conduct an inquest without the need for witness evidence. However, at other times, the Coroner will require witness evidence, particularly if there are any uncertainties in relation to how the deceased person came about their death. Witness evidence can be difficult to navigate as Coroners might ask for written statements without much guidance on content.

It is therefore often helpful to submit a request to the Coroner to be granted ‘Interested Person’ status. An Interested Person is someone who is entitled to participate in the inquest and receive evidence relating to the deceased, including a copy of the Post-Mortem report, if one is available. Having access to this information will help the witness understand what some of the issues are and help them to prepare a detailed witness statement, with supporting evidence. Providers will want their witness evidence to represent a service in the best light and with the least risk of self-incrimination.   

The risk with witness evidence is that sometimes it is not detailed enough and other times too much information is provided (sometimes which goes beyond what the Coroner needs or asks for) which in turn can bring its own risks. Seeking legal advice before any evidence is submitted to the Coroner is highly recommended. Lawyers can help to ensure that witness statements provided to the Coroner answer the Coroner’s queries and stay within the confines of what the inquest is intended to address. Having a sufficiently detailed witness statement can also help when it comes to giving evidence at the inquest hearing as the witness can refer to what is written in their statement, which can help to make the process less daunting.

For more information, click your sector below.

Adult Social Care
Children’s Social Care
Independent Healthcare

We have been involved in inquests where CQC has been granted Interested Person status. CQC could use the inquests process as a way to gather further information about an incident and about a provider so there are risks with this. Whilst CQC ought to be to carrying out their own enquiries to determine whether there have been failings under the relevant regulations, it is possible that CQC could well be using the inquests process to gather evidence or lines of enquiry which are potentially outside of CQC’s regulatory framework.

It must be remembered though, the evidence presented in an inquest and the conclusions drawn are not evidence of a regulatory failure that CQC can rely on to take action against you. CQC has different processes that are entirely separate to the inquests process. Ordinarily CQC would need to inspect a service to determine a breach of regulations. CQC should request information or documentation under Section 64 of the Health and Social Care Act 2008. CQC also has additional powers under Section 65 of the Health and Social Care Act 2008 which requires providers to provide an explanation in relation to any relevant matter to CQC. So whilst CQC might try and use the inquests process to gather information which is something to be aware of, CQC would still need to demonstrate that a provider is in breach of the regulations.

[Date answered: December 2020]

The public are entitled to attend any inquest unless specifically prohibited by the Coroner. This includes members of the press who often use details from inquests to write stories about the person that has died or the nature of their death. The outcome will also be made public and so a narrative verdict that may include some detail about a provider’s role in the life and subsequent death of a service user can also be publicised, opening a provider up to public scrutiny if the coroner believes that they have, in some way, contributed to the death of the person in question. This cements the absolute imperative point that providers involved in inquests should fully represent their position. In the event that it is clear that the care provided could be open to criticism by the Coroner, Ridouts would strongly recommend providers consider the use of a public relations agency to prepare and support them in handling any negative press on the matter.

[Date answered: December 2020]

Coroners have a legal duty to issue a PFD report to any person or organisation where, in the opinion of the Coroner, action should be taken to prevent future deaths. On 4 November 2020, the Chief Coroner issued revised guidance (No5) on Coroners’ statutory powers and duties in this regard.

If it has been found during an Inquest that a provider had done all they could to prevent a death then a PFD is unlikely to be issued to the provider directly as the Coroners duty is to make the report to the person or organisation who the Coroner believes has the power to take action to prevent those circumstances happening again or to reduce the risk of death created by them.

However, if a care provider is involved in an Inquest and is concerned about a PFD report being issued, they should ensure they request to be made an Interested Person to the inquest and that they provide evidence of all the steps they have taken to prevent future deaths to the Coroner in advance of the Inquest in order to minimise the risk of the Coroner considering a PFD report is necessary.

Once a PFD report is issued requests for redactions are unlikely to be accepted. Although representations can be made to the Chief Coroner about publication of the report generally, there is a strong presumption that both PFD reports and the responses made to them will be published.

As the response to the PFD is also usually published, a practical way for the provider to ensure that the correct position about the steps they have taken is put in the public domain would be to ensure that their response to the PFD is robust. It should detail what action has been taken and/ or explains why no action is proposed for example if it is unnecessary because the provider has already taken all of the steps it can to prevent a future death.

[Date answered: December 2020]

The short answer is yes. The PFD is very specific to the findings made within the inquest process itself but issues may have been identified through that process which are of interest to CQC. CQC will make its own determinations based on the evidence presented to it and can seek to embark on enforcement action independently of whether a PFD has been issued or not. That being said if a provider is issued with a PFD this does not necessarily mean that increased CQC action will follow as it will depend on the facts of the case. The conclusions reached by the Coroner relate specifically to the inquest, i.e. how the deceased came by their death; the CQC should not base its decision of whether to take action against a provider, solely on the conclusions of the inquest but rather on the findings of its own investigation. The CQC would still need to demonstrate that a provider is in breach of the regulations. This is a process wholly independent of Coronial action and the decision that is taken to issue PFDs or not. If providers are part of an inquest and are concerned about CQC action in respect of that inquest they should get in touch with us as we are experienced in procuring positive outcomes for our Clients both at and following the conclusion of inquests.

[Date answered: December 2020]

Commissioning Contracts

A local authority has certain powers conferred on it by the contract agreed between it and the care provider. Some of these powers include the local authority being able to visit a service and assess whether or not care is being provided in line with its own quality standards.

In the event that the local authority determines that the care provider is not meeting its own contractual / policy standards, it may be concluded that that provider is in breach of that contract. The consequences of such an assessment can be extremely serious and include restriction on admissions, removal of service users funded by that local authority or even the threat of termination of that contract which could have a serious impact on a provider’s business. Where a local authority makes any allegations about quality, a provider must demand to see and understand the evidence against it and the points on which the local authority relies to take the action it is considering. Many aspects of the local authority quality assurance process mirrors the CQC’s own regulatory function and so a provider would be encouraged to challenge the local authority on this duplication – especially if it has a positive rating with the CQC. Just like the CQC’s factual accuracy process, a provider should feel empowered to challenge findings made by the local authority that it does not believe to be correct.

Sometimes where a care provider is having regulatory difficulty with enforcement action from the CQC, the local authority will automatically assume that the provider is in breach of contract and take its own punitive action, such as reassessing service users in order to remove them. In this scenario, providers are best advised to immediately contact a legal representative and take advice as this action could have fatal consequences for a business. Providers should challenge this action, especially as, often, the CQC’s approach can be erroneous or disproportionate.

If the local authority is communicating with service users about regulatory action that a care provider is facing they can often misrepresent the true position and frighten service users and their families into believing that a service is going to close imminently – when this rarely happens. It is vital that providers are clear with service users and other stakeholders about the true position and closely monitor exactly what action the local authority is taking. Just as the contact gives the local authority rights and powers, it also sets out in which circumstances action can be taken. On this basis, providers should be mindful of the local authority also breaching its contract where it takes action without the appropriate justification, as per the contract. A challenge should be made where this appears to be the case.

It is important that you read your contracts, if you have them, to see what process there is for dispute resolution. Dissatisfaction with the fee-level/price being paid for providing care to the service user is a dispute which can be referred unless it is specifically excluded from the contract.

The common law can imply terms into a contract which are necessary to maintain commercial sense. Increases in costs to maintain margin and, most particularly, to cover cost increases which are externally imposed e.g. National Minimum Wage increases, are provisions that can be implied into a contract. Care contracts are unusual because they are expected to last for lengthy periods of time when circumstances will inevitably change, including changes in service user needs and acuity.

Neither side to a contract can unilaterally change the terms. However, you can exercise a right to terminate the contract on proper notice (and in accordance with the Contract terms) and require the resident/ service user to move. If the resident/service user is not moved you can stipulate that after the expiry date any continued stay will be at your new set price. This is re-basing into a new contract not varying an existing contract.

Whatever you decide you should take detailed legal advice and be prepared to reveal your actual costs to justify the non-viability of your existing Contract.

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Adult Social Care
Independent Healthcare 

FITNESS TO PRACTISE

Yes. As a current General Medical Council (“GMC”) registered Doctor, you are professionally obliged to notify the GMC of any conviction you have received. This requirement is detailed in paragraph 75 of Good Medical Practice which states “You must tell us without delay if, anywhere in the world: … (b) You have been charged with or found guilty of a criminal offence”. You will therefore need to make a declaration to the GMC as soon as possible and detail all pertinent information e.g. date of conviction, offence convicted of, and the Court which convicted you. Once your declaration has been submitted, the GMC will then consider whether to raise a Fitness to Practise investigation against you and you will be informed of the outcome accordingly.

If you provide services to the National Health Service (“NHS”) and hold a NHS Performers List number, you will also need to make a declaration to your NHS England (“NHSE”) Regional Team in accordance with Regulation 9 (2) of the NHS (Performers List) (England) Regulations 2013.   This states “The Practitioner must make a declaration to the Board if the Practitioner …(a) is convicted of a criminal offence in the United Kingdom”. Once the declaration is made to your NHSE Regional Team, you may be asked to provide them with further information and/or they may invite you to attend a meeting.

You should also check your contract of employment for any reporting requirements. Even if such reporting requirements are not contractually detailed, you should notify your employer of the conviction in accordance with your Duty of Candour. This will stand you in good stead should the GMC decide to investigate your conviction as they will contact your employer straight away and notify them of the conviction. Therefore, it’s best to notify your employer immediately and explain any pertinent circumstances surrounding your conviction.

If a Fitness to Practise investigation has been raised against you or you receive a request for further information from your NHSE Regional Team, we suggest you contact your insurer and/or seek legal assistance at the earliest available opportunity.

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GP Practices
Dental Practices
Healthcare Professionals 

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