Questions and Answers

The team at Ridouts provides answers to a selection of popular questions submitted to us by Providers.

These reflect the position at the date noted in the answers, but please do be aware that guidance on many of these topics changes regularly. Whilst we aim to keep this page as up to date as possible (see our news page or our articles here), the answers here do not constitute individual legal advice and cannot be relied on as such.

For up to date advice specific to your individual circumstances please contact us directly or request a call back here.

CQC

CQC take into account a range of information when assessing the need for inspection and enforcement action. CQC will be informed about positive test results and best practice suggests that any COVID-19 outbreaks should be notified to CQC (this will usually not be a safeguarding matter in and of itself). It is very likely that a COVID-19 outbreak will trigger, at least, a telephone interview, and, maybe contact from the Health & Safety Executive. Historic infections, if successfully managed, are unlikely to trigger attention unless they are combined with evidence of ongoing poor infection control issues (perhaps from whistle-blowers). You should have clear COVID-19 infection and notification policies. Every day, you should have a senior quality manager available who is conversant with those policies and their application in your service. This manager should be able to speak in an informed way, about the arrangements and their application. In this way, you are in a good position to avoid a more intrusive visit, which would normally be unannounced.

With an inspection, these need to be dealt with sensitively but robustly and evidence of good practice should be provided to the CQC to help them formulate their judgments and consider whether any additional action should be taken.  Should an inspection report not accurately reflect your service you have an opportunity to address this with the CQC and should do so.  Otherwise action, based on incorrect facts, could be taken.

[Date answered: October 2020]

CQC has already completed 400 Infection Prevention Control (‘IPC’) inspections in Adult Social Care either to “capture good practice” or follow up in places where CQC deems there may be risk. In a recent CQC webinar, Kate Terroni, Chief Inspector of Adult Social Care said that CQC would be conducting IPC checks on all inspections in the future and that by the end of November 2020, an additional 500 care home IPC inspections will have taken place. CQC has confirmed that following IPC inspections, draft inspection reports will be sent to providers and providers will have the opportunity to challenge draft reports through the Factual Accuracy Comments process. Often criticisms in an inspection report can form the basis of escalating enforcement action such as warning notices, Notice of Proposals to impose conditions or to cancel a provider’s registration and also urgent Notice of Decisions. This is likely to be what CQC means by ‘taking action’ if infection control is not a good standard.  Providers have an opportunity to respond to action taken by CQC and should do so if CQC have got matters wrong or have drawn incorrect conclusions.

With regards to staff working across different sites, Ministers are understood to be in the process of developing legislation to prevent care workers from working in more than one care home. This is because there is evidence to suggest that during the first wave of the COVID-19 pandemic, asymptomatic workers were allowed to freely move between care homes without being tested for the virus which meant that it was allowed to spread between care homes.

Under the new legislation, care homes would reportedly be expected to ask workers to sign ‘exclusive’ contracts which prevent them from working at more than one site. Kate Terroni, was asked about the proposed measures on BBC Radio 4’s Today programme on 22 October 2020 and she said, “I think it’s critical to reduce as much as possible staff moving between different homes to it’s essential that people are not doing that. We’re working with Government to think about what our role as the regulator could be in ensuring that happens”. From this statement, it seems likely that limitations on staff movement across different sites will be enforced through regulations. This of course is going to be very difficult for providers who rely on bank staff and agency staff to fill staff shortages.

[Date answered: October 2020]

At present Provider Information Returns (PIR) are suspended and we do not have a concrete date as to when PIR’s will be back in operation again. When they are back in operation (and providers will know this because they will be sent a link to complete the PIR) current CQC guidance states that when a PIR is sent to a provider you have a 4 week deadline to respond to the questions raised within it. Whilst 4 weeks may seem like an adequate amount of time to complete the PIR there are a significant number of questions contained within the PIR which require both data and substantive answers to questions. Careful consideration should be given to the evidence provided as this the CQC will use this information to form an opinion of the service that is being offered at a location. It is important to return the PIR because a failure to return it within the deadline will result in the question of well-led being limited to being rated as ‘Requires Improvement’ which could impact on a provider’s overall rating. The CQC are seeking to rely more on data and information that is provided to it and the PIR, if engaged with properly, can offer providers the opportunity to positively impress upon the CQC the quality of service provision at a location. Do get in touch with us when you receive your PIR and we’d be happy to assist you in responding appropriately to it.

[Date answered: October 2020]

If a provider has been rated as ‘Requires Improvement’, the CQC will certainly have required the provider to have supplied it with an action plan particularising how it seeks to address regulatory breaches identified within the report. The quality of the response and the timeframes and actions that have been identified are of integral importance as to the action that might be contemplated by the CQC going forward. If the CQC views the action plan that the provider has submitted as being sufficient to address the concerns raised they may continue to check in with the provider and plan a return visit to ensure that the provider is meeting the regulatory requirements which it is alleged to be in breach of. If the CQC is not content with the action plan submitted it could move to inspect the service again, or request further information via a s64/s65 request. The CQC could also take further action to place conditions on a provider’s registration which will impact on its ability to provide the regulated activity from its location or at worst it could seek to cancel a provider’s registration to provide regulated activities from that location. With providers rated as ‘Requires Improvement’ they may or may not have responded to the findings contained in the draft inspection report when they received it or challenged the alleged breaches of regulation but we cannot impress upon providers enough the importance of challenging the CQC’s findings where those findings are based on incorrect facts or the wrong conclusions have been drawn. They will form part of a provider’s compliance history and this can lead to further enforcement activity in the future. We are well versed in successfully challenging such reports, ratings and regulatory breaches which are wrong and have been successful in persuading the CQC not to take further action which would otherwise have a knock-on effect for providers. 

[Date answered: October 2020]

Homecare providers have not been included in CQC’s recent Adult Social Care Infection Prevention Control (‘IPC’) inspections. As explained above in response to question 2, to date, the CQC has carried out 400 of these inspections but in care homes. Furthermore the CQC’s set of IPC questions and prompts are geared towards care homes. That said, in a recent CQC webinar, Kate Terroni, Chief Inspector of Adult Social Care made clear that the CQC will be focusing on IPC up until spring 2021 at least, and therefore will likely feature in CQC’s monitoring of homecare providers. Homecare providers could still use the questions and prompts as a guide as quite a few of the questions and prompts do apply to homecare services as well as care homes, such as “does the service use PPE effectively to safeguard staff and people using services?” and “Is IPC policy up to date and implemented effectively to prevent and control infection”.

The CQC’s new Transitional Monitoring Approach (“TMA”) (brought in to enable the CQC to adapt to working during the pandemic) has changed not only the frequency of inspections but also the way in which the CQC monitor providers. Since the outbreak of COVID-19 the CQC suspended inspections, introduced the Emergency Support Framework (“ESF”) which involved remote monitoring through telephone conversations and the CQC “crossed the threshold” to inspect services only where there was a high risk at a service. The TMA is similar to the ESF, which will involve CQC inspectors reviewing the information they hold about a service, followed by either having a conversation with a provider online or by telephone. During the conversation, inspectors will ask providers ‘monitoring questions’ which will focus on specific KLOEs. This interaction will be used by the CQC to determine what action is required i.e. no action or an inspection. More information about this approach and what it means for providers can be found here. What this means in essence is that providers can expect to receive face to face inspections less frequently unless something prompts CQC to inspect. 

This new way of remote monitoring will be tested first on homecare services in the form of a pilot involving 60 homecare agencies. The providers, who volunteer to be part of the pilot, will receive a remote inspection in which the homecare provider will share documents via email prior and after the inspection and the inspection itself will take place either by telephone or video call on Microsoft Teams. The pilot will test different ways of engaging remotely with providers, service users and staff, replacing visits to location offices. Each inspection will result in an inspection report which will be published on the CQC website. Do get in touch with us if you receive a draft inspection report that you are unhappy with, we’d be happy to assist you with making factual accuracy submissions.

[Date answered: October 2020]

Safeguarding

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]

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