The information gathered by the CQC during a period of inspection has the potential to be passed to other public regulatory bodies. In certain environments, such as GP practices, where the majority of staff are also subject to professional rules and regulations, the CQC may take it upon themselves to share relevant information with the professional regulator – for example, the General Medical Council (“GMC”) and / or the Nursing and Midwifery Council (“NMC”). In practice, this means that the consequences of CQC attention may be more far-reaching than initially expected by a provider or practitioner and could lead to a practice having to fight fire on several fronts.
When undertaking an inspection of a provider, the CQC are privy to a wealth of documentary material, staff insight and client feedback. The CQC’s ‘Information Sharing Guidance’ states:
“In our work to make sure that health and social care services provide people with safe, effective, compassionate and high-quality care, we regularly work alongside other public bodies that have their own roles in protecting and promoting people’s welfare. Sharing information with other bodies helps both them and us carry out our respective functions.”
While the CQC will be inspecting a service in line with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“2014 Regulations”), it may consider it necessary to share its findings with the relevant professional regulator if information concerning a staff members competency or behaviour – potentially a doctor or nurse – gives it cause for concern. Its justification for this is that failure to share this information may result in an individual client or service user suffering significant harm.
At Ridouts, we have seen an increased number of instances where the CQC has shared information with relevant professional regulators following an inspection or other form of contact from the CQC.
Following a CQC inspection, the CQC will issue a draft inspection report. If there are concerns about an individual nurse or doctor failing to adhere to their own professional requirements and / or responsibilities this is likely to result in an assertion that the provider has failed to comply with either Regulation 17 and / or 18 of the 2014 Regulations. Regulation 17 relates to Good Governance and looks at how the regulated activity is managed by the registered provider, and Regulation 18 relates to Staffing and looks at whether the regulated activity is being carried on by enough competent / skilled staff. These perceived failings are often worded in a manner which implies the provider has failed to either ensure the competency of its staff, or that it has failed to support the individual in complying with its professional obligations. Whilst the CQC is looking at the registered persons’ compliance with the 2014 Regulations (which, remember, is the provider and registered manager) it is making judgement on management and individuals who, as registered professionals, do not want to come under the scrutiny of the GMC or NMC. A provider can challenge inaccurate facts and erroneous judgements made by the CQC through the factual accuracy comments process. This gives a provider 10 working days from receipt of the draft inspection report to provide evidence to the CQC to demonstrate why its conclusions are incorrect. This is an important step in trying to correct the narrative and can be shared with other professional bodies and commissioners to try to minimise the impact of any negative information being shared. Often engaging a lawyer to help with the factual accuracy process enables a more objective approach to be taken to the allegations, and evidence and takes some of the pressure off you when you may be dealing with multiple stakeholders following a CQC inspection.
A freedom of information request found that within the last two years there have been 30 referrals from the CQC to the GMC. While it is accepted that this information only relates to a single professional body and is unable to quantify whether information sharing is on the rise, it clearly evidences that the CQC are willing to share information with a professional regulator. This can lead to the GMC considering whether it needs to investigate the matter further.
The CQC’s ‘Information Sharing Guidance’ suggests that the practice of sharing information amongst relevant public bodies, including professional regulators, promotes openness, accountability and takes steps to ensure the welfare of those who utilise a service. What the guidance fails to consider is the impact that erroneous, misconstrued and untriangulated sharing of information has on a provider and individual careers. In these circumstances, not only does a provider find itself needing to defend the reputation of its service to the CQC but may also find itself fighting a separate, but related battle, with another regulator. While a professional regulator’s focus may only be on the individual member of staff, this attention has repercussions on a provider as it impacts its staffing and subsequent ability to provide its service. Furthermore, in our experience, the indelicate wording utilised by the CQC within its draft inspection reports can often result in the individual member of staff or the service user being easily identifiable. This should be pushed back on as part of the factual accuracy process.
The increased frequency of the CQC sharing information with public bodies, including regulators, should give a provider pause to ensure that it has taken all reasonable steps to ensure its staff are compliant with its professional responsibilities. For example, ensuring all staff are registered and hold in date registration information. It is accepted that a provider’s staff must also hold responsibility for ensuring compliance with their own professional body’s rules and regulations, but a provider should be able to demonstrate that it has taken all reasonable steps to ensure it is hiring staff who are compliant and who remain compliant. This is what the 2014 Regulations require and what providers are being judged against by the CQC.
The impact of any information sharing might be successfully mitigated or addressed through robust responses to draft inspection reports (or other enforcement action that the CQC could take as a result of an inspection, such as warning notices or notices of proposals). While beyond having robust governance systems in place, a provider may not be able to prevent the act of information sharing, in providing detailed responses to CQC action (and sharing that with other bodies as required) it can ensure that it has a response and evidence to allegations which can mean an individual is well-prepared in the event a professional regulator comes knocking.
If you have any questions or concerns in respect of information sharing, erroneous draft inspection reports or your general obligations, please do not hesitate to contact Ridouts on 0207 317 0340 or email info@ridout-law.com.
