CQC has announced that it will be conducting 250 unannounced inspections on homecare services over the next three months as part of a thematic review of the sector. While this will lead to a national report on homecare, each service that is inspected will be issued with an individual report. Those providers who are deemed to be failing will almost certainly be the subject of adverse press releases from CQC.
In this article, we offer providers some practical advice in dealing with inspections as well as the inspection reports that then follow.
The inspection itself
At the beginning of the inspection, CQC inspectors should explain the areas they intend to look at and the tools they will be using to gather evidence. This will be particularly important given that CQC has developed a new inspection process for homecare services. You can expect CQC to focus on a small number of outcomes. These are likely to include:
- Outcome 1 – respecting and involving people who use services
- Outcome 2 – consent to care and treatment
- Outcome 4 – care and welfare of people who use services
- Outcome 7 – safeguarding people who use services from abuse
- Outcome 14 – supporting workers
- Outcome 16 – assessing and monitoring the quality of service provision
CQC inspectors, however, may look at other outcomes and you should be prepared to demonstrate compliance with all the essential standards.
If inspectors do identify a breach of the essential standards during the inspection they may serve what is known as a ‘Code B Notice’ on you. You should not be unduly worried if this happens. It has become standard practice for CQC inspectors to hand such Notices out liberally. What actually is it? Essentially, it is a Notice that investigative officers such as inspectors are expected to use when they identify what they deem to be an offence. Code B refers to Code B of the Police and Criminal Evidence Act Code of Practice. The Notice sets out the statutory powers of the CQC in relation to inspections and should briefly describe the alleged offence. It also sets out the rights of the provider in relation to search and seizure. If records are seized the provider is entitled to a list of what was taken. This will normally be attached to the Notice. The CQC will normally take photocopies and this is to be preferred over originals for obvious reasons.
There should be no surprises when you get the draft inspection report. In other words, there should be sufficient feedback during the course of the inspection process. The guidance indicates that if the inspector has given feedback during the visit to the provider or staff, the inspector must ensure that the final feedback session summarises those findings. The feedback should include areas of strength or good practice, as well as areas for improvement, picking up the headline issues. The feedback session is not supposed to be an opportunity for you to debate the findings or provide additional evidence. Be careful. We come across cases where little or no feedback is provided by CQC inspectors. It is critical that feedback is provided by the CQC and recorded by the provider in order to enable an early response to be submitted, quite possibly in advance of the publication of the draft report. You may be able to supply CQC with more evidence to demonstrate compliance, or at least partial compliance, with a particular outcome. The feedback process will be more complicated with homecare services given it is anticipated there will be follow-up interviews with service users, as well as other methods of obtaining the views of service users, families and other interested parties e.g. local authorities if they are purchasing care.
Judgements on Compliance
Under the new CQC methodology that went live from 1 April 2012, a provider will either be compliant or non-compliant with an outcome. If judged non-compliant, the minimum response will be for a compliance action to be set. If it is more serious, CQC might move immediately to enforcement. There will no longer be improvement actions.
In terms of judging compliance and the appropriate regulatory response, CQC has revised its Judgement Framework. There is helpful guidance on the test of what is “reasonably practicable” in terms of achieving compliance. Inspectors will be required to evaluate “…the risk against the effort, time and money needed to control the risk.” Significantly, CQC states that “…where complete control of a risk would require a disproportionate and unjustifiable expenditure or resource, partial mitigation of the risk may be acceptable.” This should be a check on excessive regulation where unreasonable requirements are set when balanced against the level of risk. Be ready to quote the guidance to inspectors where you believe that you have done everything reasonably practicable to meet a particular outcome.
The revised Judgement Framework also gives some useful guidance on what is “proportionate” in the context of a finding of non-compliance. An example is given of an inspection revealing one badly handled complaint but, overall, the evidence indicates an effective complaints system. In that instance it would be proportionate to judge the provider as compliant. This is a significant statement. At Ridouts, we routinely come across cases where reliance is placed on a small number of perceived failings (or even a single instance) as justifying a finding of non-compliance even though wider overall compliance is identified. This is particularly the case where, say, isolated medication recording errors are identified in circumstances where overall, the vast majority of recording entries are fine. Providers will need to ensure that as far as is possible evidence is presented to inspectors during the visit showing that overall there is compliance with each particular outcome being assessed.
The draft inspection report
It will be important to scrutinise the draft report carefully and challenge any facts, findings and judgements with which you disagree. CQC states that a provider can only challenge facts. That is wrong as a matter of law. A public body should take into account any representations a provider wishes to make about the inspection process and content of the eventual report. This is all more important given that CQC now has a “regulatory response escalator” linked to whether the perceived risk is minor, moderate or major. Several perceived moderate risks are likely to lead to the service of a warning notice and a perceived major risk almost certainly will. Given this situation, it will be even more important to challenge requirements that are flawed on the facts or otherwise unmerited. You should raise issues about proportionality and what is reasonably practicable if you consider the demands to be unfair and excessive.
In the event of any uncertainty you may need to ask for more information or seek clarity around what is being required of you. CQC has said that it will “no longer allow extensions to the timescales we give to providers to meet the standards, and if a provider fails to respond we will usually escalate the action we take.” It will therefore be crucial at the draft inspection stage to go back to the regulator with any queries and challenges.
Conclusion
It is crucial to demonstrate compliance during the inspection. Equally it will be important to record what inspectors say and take with them to enable you to challenge findings at a later date, so far as you are able. Time and resources should be dedicated to the inspection, as well as responding to the draft report that will arrive several weeks down the line. What is clear is that providers can expect to see far earlier regulatory intervention in future if compliance is not achieved. If difficulties arise during an inspection, providers should consider obtaining early legal advice from specialists in the field.
At Ridouts we are experienced in advising providers on all aspects of CQC’s compliance, inspection and enforcement powers. Please feel free to contact us for advice on 0207 317 0340.
