NHS England published an important document on 20 October 2014 which sets out both the regulatory and contractual issues which may arise following CQC inspections of GP practices. It embodies the new special measures regime but also adds important detail about how CQC, CCGs and NHS England will work together in the oversight of GP practices. It should be essential reading for all GP providers.
A number of key points arise:
- CQC, NHS England (and its area teams) and the CCGs will be working collaboratively before, during and after CQC inspections. They will have agreed information data sets and regular meetings before and after inspections. Those practices that give rise to particular concerns are likely to be escalated for discussion at local and regional Quality Surveillance Groups.
- Examples of information which will be shared are data on patient experience, annual turnover, the practice profile, QOF data, complaints / whistle blower information, evidence on contractual compliance, CQC intelligent monitoring, audits on prescribing data and referral data, professional investigations, workforce information and premises information (e.g. on infection control.) According to the framework, CQC will alert the area teams in NHS England within 1 working day of having a concern.
- CQC will feed back on the GP practice’s rating. Inspectors will focus on 6 population groups (older people, people with long term conditions, working age people, families, children and young people, people living in vulnerable circumstances and people with poor mental health). There is then an aggregated rating for each population group, an aggregated rating for each key question (is the service safe, effective, caring, well-led and responsive) and an overall rating for the practice.
- Practices rated ‘inadequate’ for one or more key question or population group will normally be given 6 months to improve by CQC before being put on special measures. Practices will need to work with area teams on developing an improvement plan to show the actions taken to address issues. Following a second CQC inspection, the practice will either satisfy CQC that there has been a sufficient improvement or will be placed on special measures for a maximum of six months. This is the practice’s last chance before CQC moves to cancel their registration.
- In some cases, practices will be placed straight into special measures. This will arise where the concerns are judged to be so significant that patients are at risk or there is no confidence in the practice’s ability to improve on its own. Normally, such a practice will have been judged as inadequate for the well-led domain as well as one of the other five domains or population groups.
- Improvement plans should be ‘co-developed’ between the area team, CCG and the practice.
- The Royal College of GPs is offering expert peer advice for GPs entering special measures. NHS England is providing up to £5,000 of funding directly to the RCGPs for each practice entering the programme, if the practice matches 1:1. The practice also needs to sign an agreement confirming they agree to be co-operative and will pay the fee in advance.
- If CQC decides to use its urgent powers to cancel registration, the application must be made by applying to a justice of the peace for a court order.
- Individual doctors can be the subject of referral to the GMC and/or NHS England’s Performers List regime, depending on the circumstances.
- Patients should be kept up-to-date about ratings or when a practice is placed in special measures. The DoH is consulting on whether to require providers to display ratings on their website and within their premises. Other measures to notify patients might include holding direct meetings with patients or via notices from Healthwatch.
- Contractual action by area teams: upon receiving details of concerns from CQC, a risk assessment should be done to determine if a contractual management visit is necessary. Either no contractual action will be taken or remedial/breach notices will be served or the contract will be terminated. In the case of breach notices, these must stipulate the action which the practice needs to take to remedy the breach. Sometimes a contract will require more immediate action than CQC requires. The fact that CQC is taking action will not necessarily be enough per se to justify terminating the contract.
- Area team investigations: these will normally need to happen before NHS England has a right to take contractual action itself. The level of investigation will be either minor, moderate or major. The guidance says that “Area team contracting teams should not wait for this full [CQC] report before assessing the risks and taking any necessary contractual action.”
- Providers should engage with the area team in circumstances where they are aware that they are likely to have their registration suspended or cancelled ‘in order to ensure continuity of services’. Subcontractors must be registered appropriately with CQC before they can carry out services. Alternatively, the area team may decide to contract with a “parachute provider” for the period of any suspension. Area teams are responsible for the dispersal of patient lists if the registration is terminated.
What is clear from this Framework document is that coordinated action will be taken by CQC, CCGs and NHS England in relation to the oversight of GP practices. Contractual action might occur before a practice has even received its draft CQC inspection report. If NHS England decides to carry out an investigation it should give sufficient notice to the practice of a decision to visit the practice. It is likely that there will be requests for further information. Major level investigations will lead to a full practice audit and may involve the taking of witness statements from practice staff and patients subject to their agreement. It will be critical for practices to act early if subject to formal investigation under its NHS contract and/or regulatory action. In such circumstances, NHS England and CQC will take legal advice, and it is imperative that GP practices subject to such action also obtain legal advice from a specialist firm of lawyers without delay.
Please feel free to contact us at Ridouts. We are specialist regulatory lawyers and would be happy to discuss any CQC and contractual issues affecting your practice. We’re here to help.