In my 13 years at Ridouts there isn’t much I haven’t seen in terms of regulatory and operational challenges in the health and social care sector. CQC enforcement action, opaque and seemingly never-ending safeguarding investigations and difficult contractual negotiations with local authorities are just a few of the issues that we unpick day to day. And then came the pandemic.
We are all too familiar with the challenges that providers faced on the ground over the course of almost two years. Staff fatigue, lockdowns, outbreaks and shortages of vital equipment. However, it is only now that we at Ridouts are starting to see the long-lasting impact on the sector and it is important to spread the word on how this will continue to effect organisations for years to come. Below are what I view (through recent client work) as the two biggest challenges for health and social care providers.
The Care Quality Commission
During the pandemic the Care Quality Commission (“CQC”) were almost invisible. Many of our clients expressed disbelief at the lack of support offered to them by the regulator and have done this quite vocally. Services went for many months without inspection and did the best that they could with reduced numbers of staff and ever-changing guidance. As a consequence of public criticism, it would appear that when the CQC did spring back into action they were more aggressive that we have ever seen before. We have seen a sharp increase in enforcement action against clients and critical inspection reports which make no allowances for the tribulations that providers had been through. The CQC appears determined to justify its own role by baring teeth and demonstrating to the public that it is an effective and strict regulator. Whilst this is obviously reasonable, what is not fair is the lack of compassion and understanding of the positions of many providers who have struggled in recent months. Particular focus has landed on use of agency staff (which the CQC dislikes but is very difficult to avoid in times of crisis) and availability of activities (which have obviously been sporadically impeded by lockdowns, both nationally and in times of localised outbreak).
Care businesses must be hyper-vigilant about the inflexibility of the regulator and how its focus can work. Providers must continue to create documentary evidence to record all decisions made, including (using the examples above) use of agency staff (including risk assessments and dependency tools) and identifying / creating alternative activities when service users are unable to leave the service as a result of a lockdown. The CQC is compelled to rely on evidence provided to it and so producing such items will enable providers to stave off criticism in these and other key areas.
We are all aware of the national staff shortage which has arisen as a consequence of the mandatory vaccine mandate, changes in immigration law and the general migration of people away from the health and social care sector in the wake of the pandemic. This has had a significant impact on businesses but we have also noted how this is affecting existing staff teams that are committed to their work. Many regulatory issues arise as a consequence of anonymous whistleblows from unhappy staff. Problems can relate to fatigue, feeling undervalued or that staff do not feel supported by their managers. These issues can become more prominent when staff are stretched or required to cover for colleagues that are absent or have left the service and are yet to be replaced.
If communication is poor then staff may prefer to complain to the CQC directly rather than to their own senior team. Any allegation received by the CQC will then (understandably) become the focus of investigation and potentially inspection. A key to avoiding this escalation is to encourage open discussion with the staff team and offer 1:1 meetings to discuss concerns. Staff feedback is vital to ensuring a harmonious and effective service and in turn, that will avoid the need for staff to report to the CQC – which should be a last resort.
We see first-hand how small issues can snowball into major regulatory problems so being responsive and proactive will stand providers in good stead for what is likely to continue to be a hostile regulatory terrain.