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]

Inquests

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]

Providers' Choice

The CQC has been focussing on infection control in the most recent inspections that we have seen undertaken under the TMA. Inspectors are extending the use of remote monitoring and so will be contacting staff and service users outside the inspection itself and gathering views on how the provider has been faring. In addition to the increased focus on all things IPC, the CQC will continue to look at the way that services are led, how risk is managed and whether or not service users are happy with the care that they are receiving. A major issue that we have seen crop up time and again is the way that staff use PPE when working at a care home or going into a service user’s home as a domiciliary care worker. Staff must be mindful of their training and company policy on how PPE should be worn, removed and disposed of, as well as all other requirements in terms of infection control.

All providers should also be reminded that concerns reported to the regulator can also trigger inspections and so it is vital to reaffirm internal whistleblowing policies to all staff and the complaints process to service users and their families to encourage issues to be resolved locally instead of parties directing issues to the CQC in the first instance.

[Date answered: December 2020]

This is correct. In theory the Infection Prevention and Control “IPC” inspections are a particular type of inspection with a specific purposes and focus. However, in practice, that is not to say that a negative IPC inspection will not impact on a Provider’s reputation, the credibility of the rating itself, or could never lead to a change in rating.

The CQC are conducting IPC inspections based on a specially adapted framework based on pre-existing “Key Lines of Enquiry”, under key line of enquiry 5 in the “Safe” domain. Whilst the CQC do not “rate” a service following these inspections, they will “judge” a service in 8 areas, namely visitors, shielding, admission, use of personal protective equipment (PPE), testing, premises, staffing and policies.

In each area, they will judge whether they are “assured”, “somewhat assured” or “not assured” by what a service is doing with IPC matters. The CQC will publish the results of its judgments on its website with clear visual indicators; a green tick for assured; grey cross for somewhat assured; and red cross for not assured. These judgments are displayed prominently under their rating on a service’s main CQC registration page.

Even through these are not formal “ratings” in the sense we have all become used to, it is not difficult to see that members of the public looking at “judgments” will see them as a similar measure of quality standards to the “ratings” they are published alongside. Therefore, if a service has “not assured” the CQC that their IPC is satisfactory in the 8 areas and this information is made public (with a big grey cross), the same damage could be done to a providers’ reputation and marketing efforts as it could if there were a negative report/rating published. Even if a provider is rated good, the impression the public will get of the service is likely to be marred if this is followed by a clear visual indicator, that the CQC is not satisfied that IPC is being handled properly.

Providers should also remember that the CQC can still decide to inspect for any reason at any time. They could, for example, find things not related to IPC which may then prompt a comprehensive or targeted inspection or a member of staff could, for example, raise concerns in an IPC inspection which could prompt further enquiry (and subsequently result in a change of your rating). If you look at the 8 areas which the CQC will be looking it is clear that if they identify concerns, these are likely to feed into other key lines of enquiry not necessarily related to IPC. For example staffing arrangements considered in the light of Covid-19 risk, might highlight staffing shortages more generally.

Our advice to providers has not changed. Always be ready for an inspection, whatever form it comes in.

[Date answered: December 2020]

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]

It will never become mandatory that staff are vaccinated. That is an assault against the person. However there may be consequences of non-agreement to vaccination. This is similar to the introduction of CRB checks, the former to DBS. If the law requires all staff to be vaccinated, staff who do not comply will have to be dismissed or reallocated to non-care tasks. If the issue becomes one of guidance or recommendation, great care must be taken to review the contract terms.

It may well be that a provider decides that it is unwilling to deploy staff who have declined vaccination. Then dismissal is likely to be fair, provided that individual circumstances and alternatives have been explored. In effect, staff who decline are refusing a lawful instruction. The termination might still be a breach of contract requiring notice. This will always need careful thought and advice, commissioners might insist on vaccination in which case termination for non-compliance may be acceptable. Some providers may decide to pay a notice period. This position will develop.

[Date answered: December 2020]

Visiting arrangements are and remain under the control of the service providers and managers. The Government cannot impose visiting. Each service, as now, will decide what opportunities it will offer and with what terms and conditions. If you were unhappy with the speed or accuracy of a particular testing service you might well exclude that test from your visiting permission policy. This may be a commercial/customer satisfaction issue.

Remember all property owners are entitled to control access to their premises subject only to contract entitlement or statutory right (usually this will only be CQC subject to reasonable excuse).

[Date answered: December 2020]

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