In a recent case – Mr Yuri Kazlouski v CQC – the First-tier Tribunal has criticised CQC’s procedures in assessing applicants for registration. CQC had refused the application of Mr Kazlouski to be registered as a manager. He appealed the decision and the hearing was heard on 1 and 2 May 2012. His appeal was successful.
CQC had turned down the application based on an assessment of his fitness under Regulation 6 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 (“The Regulations”) and Regulation 21 – requirements relating to workers – which we will come on to below.
By way of background, Mr Kazlouski had been dismissed by two previous employers in the following respects:
- First, in August 2006 following allegations of improper conduct with residents. He admitted being over friendly to clients in an effort to put them at ease. The conduct included kissing two elderly patients on the cheek and sitting on the bed of another in order to talk to her. There was no suggestion this conduct was in any way sexual. A referral was made to the Nursing and Midwifery Council (“NMC”) but the Council informed him there was no case to answer. A referral was also made to the Secretary of State for Health in respect of the Protection of Vulnerable Adults (PoVA) but Mr Kazlouski was informed that his name would not be placed on the PoVA list.
- Secondly, in May 2010 when Mr Kazlouski momentarily lost control when caring for a patient with dementia and threw some squash over him. Mr Kazlouski reported the matter to his employer who dismissed him. Referrals were made to the NMC and Independent Safeguarding Authority. The NMC decided to take no further action and ISA indicated he would not be included on the barred list.
At the Tribunal, CQC did not allege that this conduct was sufficient to mean that Mr Kazlouski could not meet the fitness requirement. Rather CQC’s case related to the way in which he had completed the application form and how he presented at interview. The main allegations made by CQC were as follows:
- Although Mr Kazlouski disclosed the two dismissals on the application form, he did not particularise the reasons for the two dismissals. CQC were not suggesting dishonesty but believed that Mr Kazlouski had been “economical with the truth.”
- At interview, Mr Kaslouski had only given limited information about the first dismissal which was felt to be evidence of him “underplaying the matter” or “being economical with the truth.” It was also felt that he had underplayed the second incident by saying he had spilt the juice over the patient. Finally, Mr Kazlouski had informed his current employer about both dismissals when in fact he had only told them about the second.
The Tribunal heard evidence from both sides and came down strongly in Mr Kazlouski’s favour.
As far as the application form was concerned, the Tribunal were satisfied that “…although Mr Kazlouski gave the minimum information about the dismissals and referrals he did so on the basis that he really believed that CQC would ask for further detail if they needed it. We were not satisfied he had been economical with the truth…because he had referred to both dismissals and both sets of referrals.”
In terms of the fit person interview, the Tribunal found that Mr Kazlouski was not dishonest. They were not satisfied that he underplayed the dismissals. In terms of the incident with the juice, the Tribunal noted that English was his third language and that he used the words “spilt” and “threw” interchangeably. At no time did he deny a loss of control or underplay the seriousness of the incident. As far as the allegation that he had been dishonest in telling CQC that he had informed his current employer about both dismissals when in fact he had only disclosed the second, was accepted as being a misunderstanding.
The Tribunal concluded, “In our assessment he has not acted dishonestly and in fact demonstrated during his evidence qualities which could mean that he could one day be an excellent manager. On all the evidence he has therefore satisfied us that he is a fit person to be a registered manager.”
The Tribunal was clearly not happy with the way the CQC assessors conducted the interview and made the following observations and recommendations:
- CQC lacked any kind of empathy and were extremely inflexible and unhelpful. Mr Kaslouski was taken by surprise when they immediately started questioning him about the second dismissal;
- Interviews should be recorded digitally “…so that any dispute about what was said or how it was said can be quickly resolved.”
- The Tribunal had reservations about not specifying in the invitation to the interview the matters which would be covered and not asking the applicant to bring material with him.
- The Tribunal was also concerned that the assessors had information in front of them that they did not share with Mr Kazlouski. “In an interview situation, the fact that he was expected to remember detail of incidents which took place some 5 years before was simply unreasonable.”
In a damning final judgement, the Tribunal states, “we make it plain that [the assessors] were not deliberately obstructive since they were acting in accordance with CQC procedures. We believe that those procedures should be examined and more training given in being fair and open with applicants.”
Applicants – whether providers or managers – who are called to an interview (face to face or by telephone), should expect fairness and openness from CQC. It is dispiriting that it required a Tribunal to highlight this. However, at the same time, the Tribunal recommendations will be of assistance to applicants going through the registration process.
If it is not clear what issues are going to be covered, you should ask CQC. You should also ask them if you need to bring along any material to a face to face interview. Almost certainly they will ask you about your knowledge and understanding of the regulatory framework. It would be sensible to take along a copy of the Health and Social Care Act 2008, the Regulations and the Guidance on the Essential Standards of Quality and Safety as you may want to refresh your memory about particular statutory provisions and outcomes. CQC’s internal guidance indicates that they will ask questions about how the applicant intends to promote equality and diversity within their service, adding “By doing this, we should be able to make judgments about how the applicant values people’s rights as individuals and what measures they intend to put in place to ensure that people can live the life they choose.” You should, therefore, have clear answers about how you will comply with outcome 1 (respecting and involving people who use services) and outcome 2 (consent to care and treatment).
Essentially, the interview should be conducted fairly rather than be an occasion to try and catch you out. You should also ensure a proper record of the interview is kept. If it appears there may be issues in dispute, you might want to ask for the interview to be digitally recorded. Significantly, CQC’s own internal guidance states, “It [an interview] is not a test that the applicant passes or fails. Matters can be re-visited and assessed outside of the interview.” It follows that if you believe you did not do yourself justice at interview you can follow up with more information to demonstrate your suitability to be registered.
We will be asking CQC what steps it intends to take in light of this decision and requesting copies of any revised internal guidance to assessors about handling applications for registration, notably the interview process. We will post a further alert once we have answers from CQC.