The new ‘Fundamental Standards’: vague, confusing and flawed

Last September, the DOH hailed the advent of the new draft Fundamental Standards (contained within the  new draft 2014 regulations) because the removal, in some instances, of the requirement for CQC to issue a warning notice prior to prosecuting providers was seen as being ‘likely to create a stronger deterrent effect against non-compliance with the regulations.’  The new regulation 17 makes it clear that whilst breaches of some regulations will still only be subject to prosecution following service of a warning notice, in respect of many breaches, no warning notice will need to be served prior to a prosecution.

The DOH opened its consultation to the new proposed regulations in January 2014. Providers will only have a short window to respond (the consultation closes on 4 April 2014). You can view the DOH consultation document by clicking on this link:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/274715/Introducing_Fundamental_Standards_-_a_Consultation.pdf.

The consultation is very critical of the current regulations (‘it is not always clear what the overall intended effect is. It is also not obvious what a breach of the overall requirement would entail’ page 7)) and emphasises that the new regulations represent an attempt ‘to rectify this lack of clarity.’

The problem is that many sections within the new regulations are incredibly confusing and woolly, and in some places give scope for extremely broad interpretation. Ironically, it was the vagueness of the current regulations which led the Statutory Instruments Joint Committee (which reviewed the current regulations in 2009) to advise that any prosecutions launched under those regulations should only be commenced after a warning notice had been served. This advice seemed to then be taken on board given that warning notices were provided for in the current regulations. Given that the new set of regulations is even vaguer than its predecessor, it is difficult to understand how a direct prosecution can now be justified. It also seems to go against that original advice.

Here are just a few examples of the problems we have picked up on when reviewing the new proposed regulations:

1. Vague and undefined phrases: ‘generally accepted professional standards’ (regs 4(2)(b)) and 10(1)); ‘suitably accessible equipment’ (reg 4(3)(f)); ‘appropriate steps’ (regs 7(2)(a) &(b), reg 8(2)), ‘appropriately investigated’ (reg 11(1)); ‘appropriate action’ (reg 11(1)).

2. Lack of clarity over when and what kind of enforcement action can be undertaken: The regulations do not make it clear under what circumstances a lesser form of enforcement action would be taken in cases which do not merit a prosecution. According to page 15 of the consultation document, ‘additional clauses have been added that place a responsibility on providers to act in particular ways that help to achieve the required outcome’. It is stated that this has been done in part ‘to enable CQC to take action in cases where although the outcome is technically being met, the provider is taking a risky approach that is likely to compromise safety or quality in the future.’  This approach is clearly unsatisfactory because it is not clear what action CQC would take in cases that fall into this category.

3. Broad range of offences subject to direct prosecution: These range from a breach of the requirement to make reasonable adjustments to meet a service user’s needs (reg 4(3)(e)) to a breach of the need to meet the nutritional needs of service users (reg 9(1)) or the need for premises and equipment to be ‘safe, clean and secure,’suitable for the purpose for which they are being used’ and ‘properly used and maintained’ in ‘accordance with generally accepted professional standards’ (reg 10). The regulations are given even wider scope when one considers just how broadly one could interpret some of the phrases peppered throughout them.

4. Onerous provisions: Some of the provisions are unduly onerous. For example, regulation 12 on ‘good governance’ (which replaces the current regulation on assessing and monitoring the service) now imposes a requirement that the provider should be ‘continually evaluating and improving (such) services.’

5. Harsher sanctions: The proposal is that the financial penalty for failing to meet the new regulations goes from a £50,000 fine to an unlimited fine (page 18 of the DOH Consultation document).

Although some clarity should be obtained by the Spring of 2014 (when CQC are consulting on the Compliance Guidance which elaborates on the new regulations), given that the deadline for responding to the DOH consultation is coming up in less than 2 months, and given the problems with the new regulations which have been highlighted above, it is imperative that you make sure that you make your views about the Fundamental Standards known before it is too late. If you have any further questions about them before you do so we at Ridouts are always happy to help answer them.

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