Under the Freedom of Information Act, we have obtained internal CQC guidance for its staff on “Issuing Warning Notices and handling representations against publication of Warning Notices”.
The Guidance states that once a warning notice is served it cannot be withdrawn. CQC is applying this policy position to situations where warning notices are unjustified and should be withdrawn. In a recent case that we dealt with, CQC upheld our client’s representations but refused to withdraw the warning notice. This is a surprising position for a regulator to adopt as it can hardly be considered proper regulation to insist on keeping in place a warning notice that is without merit.
There are a range of arguments that can be deployed to challenge CQC if it refuses to withdraw a flawed warning notice. These include the following:
- A refusal by the CQC to acknowledge and utilise a power to withdraw and leave in place a warning notice which has been established as being unjustified would represent a breach of section 4 of the 2008 Act which obliges the CQC, in performing its functions, to “have regard to:
(e) the need to ensure that action by the Commission in relation to health and social care services is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed.”
- Under paragraph 2(3) of Schedule 1 to the Health and Social Care Act 2008, CQC has a duty to carry out its functions“effectively, efficiently and economically.” Maintaining in place an unmerited warning notice does not fulfil that duty, and a power to withdraw a warning notice can be implied in the 2008 Act. The existence of an implied power to withdraw a flawed warning notice would promote fairness and reasonableness. The absence of such a power would produce effects which were unreasonable, unfair and work injustice, e.g. allowing an unjustified warning notice to remain in place. In leaving a warning notice in place, CQC would be maintaining enforcement action where it was not required for the protection of health, safety and welfare of service users contrary to its statutory purposes under the Act.
- The courts have implied a power to withdraw similar notices in relation to other regulators. In the case of R v Bristol City Council ex p Everett (1999) both the Administrative Court and the Court of Appeal found that, notwithstanding the absence of an express power, a regulator had an implied power to withdraw an enforcement notice served under environmental legislation.
If you are unhappy with a warning notice in terms of its intrinsic merits, not only should you challenge publication by putting in representations, you should also ask for CQC to withdraw it.
At Ridouts we have considerable experience of advising providers on warning notices. Please feel free to call us for a free initial consultation. We’re here to help.