During the COVID-19 pandemic, the CQC introduced a risk-based inspection model and focused its inspection activity where service users were deemed to be at risk of harm. Since the introduction of this risk-based system, we have seen an overall increase in the CQC’s enforcement action. This has also been confirmed by the CQC’s Chief Executive Ian Trenholm who said at the launch of the CQC’s annual State of Care report that, “about a quarter of the services” the CQC has inspected so far in 2022, had resulted in the regulator taking enforcement action (as quoted in HSJ online on 21 October 2022).
This article will focus on the CQC imposing conditions on a provider’s registration as this is something which we have seen more of recently at Ridouts. The CQC has the power to impose positive conditions on a provider’s registration or impose conditions which restrict a provider from doing something. The imposition of positive conditions require providers to take some sort of positive action. Examples of this include, requirements to send a report to the CQC on a monthly basis detailing information from audits in relation to areas such as monitoring incidents, medication management and staffing levels. The CQC can also impose conditions restricting a provider from doing something. An example of this could be to impose a condition on a provider which restricts the admission of new service users to a service.
The CQC’s powers in relation to imposing conditions
In order to impose conditions of registration, the CQC will either serve a Notice of Proposal (“NOP”) or, if the CQC believes that it needs to take urgent action to prevent service users being exposed to the risk of harm, the CQC can use its urgent powers by issuing an urgent Notice of Decision (“NOD”).
- Non-urgent NOP
If the CQC seeks to impose a condition via the non-urgent route of issuing a NOP, the NOP will set out the proposed conditions of registration and should set out the reasons for them. The provider then has 28 calendar days from the date the NOP is served (or deemed to have been served) to submit representations to the CQC to challenge the NOP. The CQC will then issue a NOD (most likely on a non-urgent basis) which indicates whether or not the CQC accepts the provider’s representations to the NOP. If the CQC does not accept the provider’s representations and issues a NOD, the provider has the right to appeal the CQC’s decision to the Care Standards Tribunal. If the provider appeals the CQC’s decision, the conditions will not take effect until the end of a failed appeal to the Tribunal.
- Urgent NOD
If the CQC issues an urgent NOD to impose conditions, the new conditions take effect immediately from the date the NOD is served on the provider. The provider then has 28 days after service of the NOD to appeal the imposition of the conditions to the Tribunal. Appeals against urgent NODs are given priority by the Tribunal and subject to ‘fast-track’ arrangements. Ridouts have assisted providers to successfully challenge the imposition of urgent conditions in circumstances where the Tribunal has agreed with our submissions that the evidence relied upon by the CQC did not amount to a sufficiently serious risk of harm to service users to justify such urgent action.
Providers should be aware that is an offence to fail to comply with conditions of registration without a reasonable excuse. Providers who fail to comply and do not have a reasonable excuse can be subject to a substantial fine. The CQC might also decide to take further enforcement action in response to breaches of conditions which can include prosecution.
The importance of challenging enforcement action
Although some providers might not feel like the imposition of conditions on their registration is that serious, in our experience they can quickly become burdensome for providers. This is especially the case if the conditions require that that the provider sends audit information to the CQC on a weekly or monthly basis. The imposition of conditions will result in any member of the public being able to access the details and see that the CQC has seen it as necessary to impose a condition. The risk is that this will then prejudice people and commissioners’ views of the service.
Also, some conditions do not make it clear exactly what the provider is required to do in order to comply with the condition and not to be considered in breach. Therefore, if a condition is difficult to measure, unreasonable or open ended, we would advise providers to challenge it. If not, the condition could remain indefinitely on a provider’s registration unless they apply to the CQC to have it removed which is often not straightforward and would be subject to another NOP/NOD/appeal process.
If a condition prevents a provider from admitting service users (with or without the CQC’s prior consent), this can have serious commercial implications for a provider and at Ridouts our advice would be to challenge such a condition.
At Ridouts we support providers with a range of issues. If providers receive a NOP or urgent NOD to impose conditions on their registration and they are unsure whether to challenge, we can assist with this. If you require assistance or advice, please contact Ridouts Professional Services Ltd using the email address email@example.com or by calling 0207 317 0340.