The year 2015 has seen a major overhaul of the regulatory aspect of adult health and social care. One of the oft repeated criticisms of the CQC was that they have been passive in their approach to enforcement and had failed to show “teeth”. The CQC have vowed that they will be much more robust when enforcing sanctions on provider’s services. The answers lay in additional enforcement powers and a new policy, which took effect on 1 April 2015 under the Health and Social Care Act 2008, as amended by the Care Act 2014. It is envisioned that the revised policy will improve health and adult social care services and protect the health, safety and welfare of people who use them.
CQC assert that there are two underlying purposes when considering to use enforcement powers.
To protect people who use regulated services from harm and the risk of harm and to ensure they receive services of an appropriate standard.
To hold providers and individuals to account for failures in how the service is provided.
The provider rating will have significance for the type of enforcement action required. CQC will be more likely to use their enforcement powers if a provider is rated “requires improvement” or “inadequate” and if a provider has a history of repeated inadequate rating and breaches of legislation.
Proportionality
In the past, CQC have been inconsistent and have not always been proportionate when using their enforcement powers. CQC has asserted that they will only take action that is proportionate to the circumstances of the individual case. Where it is appropriate to do so, CQC will work with providers to improve standards of the service if a provider is rated requires improvement and their service does not pose a significant risk to people. The new policy moves away from the previous “enforcement escalator” whereby CQC have taken the approach of issuing successive stronger warnings rather than taking action. Instead, they will now commence with whatever level of intervention they see necessary to achieve their objective.
What can CQC enforce?
CQC can take enforcement action against providers of any regulated activity in England and also against registered persons and managers who breach legislation. Various enforcement powers will be adopted dependant on the level of harm or risk of harm to people.
CQC will enforce conditions of registration on a provider where there is a breach of the fundamental standards. Some regulations allow direct prosecution when standards are breached. These regulations are as follows:
Regulation 11: Need for consent
Regulation 12: Safe care and treatment
Regulation 13: Safeguarding service users from abuse and improper treatment
Regulation 14: Meeting nutritional and hydration needs
Regulation 20: Duty of candour
Regulation 20A: Requirement as to display of performance assessments
When breaches do not amount to a criminal offence, CQC will enforce the standards using civil powers to impose conditions, suspend registration or cancel registration to protect people from harm or risk of harm.
Imposing, varying or removing conditions of registration is the more flexible approach CQC will take when using their enforcement powers. For example, CQC may use a condition to stop a regulated activity at one location but allow the regulated activity to continue at another. The conditions may only be removed subject to the concerns raised by CQC being addressed. CQC envisage that they will be using the enforcement power of imposing conditions most frequently. Conditions will be placed on a provider only if it is likely to result in the provider addressing the concerns of CQC within an acceptable timescale.
Suspension of registration is another option for CQC to force providers to protect people from harm or risk of harm. CQC says that it is reluctant to use this enforcement power and will only use it where there is a very serious concern which can be dealt with within a fixed period. This will only be used if it is necessary to prevent breaches of legal requirements. This type of enforcement will be particularly detrimental to providers, as it has serious commercial consequences for a provider even though the suspension is for a temporary period.
Finally, CQC also have the option of cancelling a providers’ registration. This is understandably the most powerful and detrimental sanction for providers. Cancellation will occur where CQC make considerable efforts to get a provider to meet legal requirements and the provider fails to do so. This power can be used without first having followed other processes. Cancellation will only be considered when CQC believe that the provider will not have the capability to comply with the regulations.
Failure to comply with the above civil powers will amount to a criminal offence and may result in prosecution.
In addition to statutory powers, CQC will collaborate with other organisations when it is proportionate to do so and where it is likely to be more effective than CQC acting on its own when prosecuting. CQC’s powers of prosecution will align more closely with those of the Health and Safety Executive. This new measure is a reactionary step taken by CQC as a result of the events surrounding Mid-Staffordshire and Winterbourne View. CQC claim that this new enforcement power will ensure that matters are dealt with appropriately and in a timely manner to help protect users of services and their families from poor quality care.
CQC can also require a provider to make improvements to protect people from harm or risk of harm by issuing Requirement Notices, Warning Notices and Section 29A Warning Notices.
A Requirement Notice’s function is much like its predecessor, the Compliance Notice. It will be issued when the provider is in breach of a regulation or when CQC believe that a provider will struggle to maintain compliance with regulations but the people using the services are not at immediate risk of harm. In such circumstances, CQC will ask the provider to produce a report which should detail how the provider will comply with their legal obligations by detailing the actions the provider is taking or proposes to take to be compliant.
Failure to send a report within the set timescale will amount to an offence.
Similarly, Warning Notices that will be issued under the new policy mirror the previous function of Warning Notices. They are issued to notify providers that they are not meeting a condition of registration/regulation or other legal requirements CQC may deem relevant. Warning notices can be retrospective as CQC can serve a notice to a provider as a result of past failures or when there are continuous breaches of legal requirements.
Notice will have timescale of when improvements must be achieved. If CQC find that necessary improvements are not made then a further enforcement action will ensue. CQC will normally follow up warning notices via an inspection within three months of the date set in the Notice.
Conclusion
CQC’s additional strengthened enforcement powers means that providers are more likely to face enforcement action which can cause serious commercial and reputational damage to a business. Given the CQC’s rhetoric on taking a more robust approach, it is essential that providers check that the proposed enforcement action is a proportionate response. If it is not then a provider should make representations to this effect. Seeking advice at an early stage is crucial and we at Ridouts are here to help.
