At Ridouts we have noticed an increase in CQC using its power to impose conditions of registration on providers’ services. In particular, the imposition of positive conditions – those that require providers to take affirmative action – appears to have increased in recent months.
Under the Health and Social Care Act 2008 (“Act”), CQC has the power to impose, vary or modify conditions of registration. Usually, certain conditions of registration will be imposed upon a provider’s registration with CQC at the time of registration (as determined by section 12 of the Act). For example, the requirement to have a registered manager in place (for some providers this condition must be applied upon registration), details of the locations whereby a registered provider can carry out regulated activities or a limit on the maximum number of service users a provider can provide care services to. However, CQC also has the power to make changes to conditions of registration at any point in time and these can be imposed as CQC ‘thinks fit’.
In order to impose, vary or modify conditions of registration for registered providers, CQC must issue a notice to the provider. This can either be served under its general powers by way of a Notice of Proposal (“NOP”) or, if CQC believes that unless it takes prompt action any person will or may be exposed to the risk of harm, CQC can use its urgent procedures by issuing an urgent Notice of Decision (“NOD”). If an urgent NOD is issued, the new or modified condition will take effect immediately and providers will be expected to comply with the condition from the date the NOD is served on them. Providers have 28 days to appeal to the Tribunal against any changes to conditions imposed by an urgent NOD.
As noted above, the other way for CQC to impose conditions of registration is through its general powers via the NOP process. The NOP will set out the proposed change(s) to the condition(s) of registration including the reasons for the change. A provider will be given 28 days to submit representations to CQC challenging the content of the NOP. CQC will then issue a NOD indicating whether it accepts the providers challenge or not. If the NOD indicates that CQC does not accept the challenge and the provider continues to disagree with CQC, they will then have to escalate their appeal to the Tribunal. Unlike urgent NODs, NOPs and NODs issued through the general procedures will not take effect until the end of a failed appeal to the Tribunal should a provider choose to challenge the NOP and NOD.
Examples of positive conditions we have encountered include requirements to:
- Send monthly action plans to CQC;
- Send weekly staff rotas to CQC;
- Update and send specific risk assessments to CQC;
- Carry out comprehensive reviews and updates of risk assessments by a certain date;
- Update care plans by a certain date;
- Carry out staff appraisals/supervisions or provide specific staff training by a certain date; and
- Carry out investigations into specific incidents by a certain date.
Under section 33 of the Act it is an offence to fail to comply with conditions of registration without a reasonable excuse. Providers that don’t comply can be subject to a substantial fine. CQC may also feel the necessity to take further enforcement action in response to breaches of conditions.
Therefore, if providers do not agree with a proposed change to their conditions of registration, they should utilise the appropriate appeals mechanisms. This is particularly relevant in terms of positive conditions, examples of which are outlined above. If a provider does not think it is reasonable for it to be required to comply by a specific date, or a condition is too onerous, this should be challenged. If this is not challenged the condition will be applied to their registration and, if and when the condition is not complied with, this is an offence and CQC can pursue further action.
It could be argued that, in the case of some conditions, CQC is essentially elevating the Fundamental Standards into conditions of registration. This method is highly questionable, particularly as some Fundamental Standards do not give rise to an offence (for example, staffing being one of them and the good governance practices under regulation 17(2)). It could be considered that the more appropriate enforcement route, if justified, would be via a warning notice. This is particularly important as the potential fine for a breach of condition is now unlimited.
It is also worth noting that a condition will stay on a provider’s registration indefinitely unless they apply to CQC to have this removed. It is not guaranteed that such an application will be accepted. If CQC refuses an application to have a condition removed this will trigger a NOP process again. Therefore, if there is no end date to a condition the provider will be required to comply with the indefinitely (or until it is removed from the registration). This could be overly burdensome and increase the risk of prosecution for non-compliance with the condition.
Ridouts is highly experienced in assisting providers with challenges to CQC enforcement action at all levels. Please feel free to contact us.