Recently CQC has issued new guidance for registered persons on warning notices (April 2012).
CQC states that representations against the publication of a summary of the warning notice (by way of a press release) must be made within five working days of receiving the warning notice. This is a continuation of the previous policy. It is not a statutory timescale. CQC has produced a standard representations form which CQC encourages providers to use “to avoid any doubt that you are making representations.”
What is new is that CQC says a decision on publication of the summary of a warning notice will not be made until CQC has considered any factual accuracy issues. These have to be lodged within ten days of receipt of the draft inspection report, which may be weeks or even months after service of the warning notice. The guidance states that “…if you do not agree with the reason the warning notice was served or the evidence in it, you need to give feedback on the accuracy of the inspection report that has led to the warning notice.” CQC adds that if a “[factual accuracy] challenge is upheld… and the subject of the challenge goes to the heart of the enforcement action we may decide not to publish the warning notice.”
CQC says that representations on a warning notice should be made prior to factual accuracy comments, adding that “representations will not be considered until the factual accuracy comments have been received, and any necessary changes addressed.”
So what is confusing about this?
First, it is not clear what CQC envisages will be contained in the representations against publication as distinct from the factual accuracy check which will deal with challenges to the reason for the service of the warning notice and any evidential issues in relation to the content of the warning notice. If the warning notice is served before receipt of the draft inspection report, which we envisage will happen in most cases, the full picture will not be available to the provider. How is the provider then supposed to frame representations?
Secondly, if a provider does not submit representations against publication will CQC publish the summary anyway? It is not clear. If CQC states that the factual accuracy check may lead to a decision not to publish a summary of the warning notice in a press release then CQC should in all cases wait for the conclusion of that process. However, that could be months down the line. CQC should clarify its position on this issue.
We believe that CQC is wrong to distinguish between representations against publication and factual accuracy issues. The Regulations quite clearly state that a provider can make representations about any matters dealt with in the warning notice. Clearly that encompasses evidential issues, whether factual or opinion.
In conclusion, the guidance issued by CQC to providers is flawed as it fails to follow the law. However, our advice is that until CQC can be persuaded to change the guidance, the safest course is for providers to make representations within five working days from receipt of the warning notice using the CQC form. The representations should address all matters dealt with in the warning notice. If the warning notice is deficient then that should be challenged. We come across warning notices which are short on detail. You might need to ask for additional information. The representations should say that CQC must take into account any factual accuracy issues that the provider may raise once the draft inspection report is received. By doing this, CQC should then delay a decision on publication of a summary of the warning notice until the factual accuracy process is concluded. This will overcome the risk of CQC publishing a summary of the warning notice which may be flawed evidentially or otherwise unmerited.
Given the confusion arising from CQC’s guidance, we would recommend that providers served with a warning notice take immediate legal advice. At Ridouts, we are experienced in challenging warning notices and we would be happy to discuss any concerns you may have about this complex and contentious area of CQC enforcement.