Treat interactions with regulators with care

I have worked with many healthcare providers who can be described at times as adopting a collaborative approach when interacting with regulators.  This can of course go one of two ways and is dependent on which regulator but more importantly which individual is tasked with dealing with the case on the regulators’ behalf.  The regulator’s and other authorities who are charged with the interaction are large in number, they can include Local Authorities, CQC, HSE and the Fire Service to name a few.

The approach I’ve found when responding and interacting with regulators is to fast forward ones thinking to a worst case scenario.  Perhaps that’s the lawyer in me and a focus on managing risk.  Even if ones interaction with a regulator is considered more light touch initially, keeping an eye on where a case could eventually find itself will allow providers to do what is necessary to put forward their most considered defence at the first time of asking.

Often providers have been unclear as to how to properly engage with actions that may be taken by regulators as it is foreign to them and they have not interacted with them in the past.  We have a wealth of experience dealing with all types of regulatory action and we are primed to support providers in putting their best foot forward.

To take a recent example, I was working for a provider who had been issued with a Fire Safety Enforcement Order.  This Order required the provider to be compliant with a set of requirements.  The first thing to bear in mind was the provider had not yet been in receipt of any such orders in the past and was unsure as to how to best respond to it.  It transpired, after being instructed and under further investigation that the provider had commissioned an inspection by a consultant who had allegedly made negative findings but had not furnished the provider with a copy of the same in a timely manner.  The Fire Service was of the opinion that the provider had neglected to act upon the information that was made available to it from the consultant.  In the absence of my instruction, the gravity of the situation and where the case could potentially have progressed to may not have been taken as seriously.  Much of my support to that provider took place in testing evidence as to actual compliance with the Fire Safety Order.  Adopting the position that the worst case scenario could have been an unlimited fine and the associated negative press that non-compliance would bring helped to focus the mind of the provider and compliance was achieved in the timeframe provided.

It is important also to treat all interactions with a regulator, from simple queries to more formalised actions to sanction providers, cautiously.  Providers should provide coherent explanations as to their present position and steps it will take to improve its position at the earliest opportunity.  Consideration needs to be given to presenting an argument in such a manner as to engender the most favourable response, likely to be through the provider’s position and the quality of evidence that it can submit supporting its position.  The provider’s regulatory history is likely to play a factor in respect of how a provider is treated by its regulator.

Ensuring also where deadlines are set that they are also complied with is important.  Some of those deadlines are set in law and they are either incapable of being extended or an extension may be unlikely to be granted.  If however an extension of time is sought this should not get in the way of preparing ones’ representations and enabling a position to be put to the regulator in any event.  It is this preparedness as to any and all eventualities which ensures that a provider is given the opportunity to represent itself in the best manner possible.

We help providers to put their best foot forward to realise their position and take steps to strengthen it through defined actions or in the manner in which we communicate with regulators.  Where there is an opportunity to, and it is in the providers’ best interests, we push back and challenge regulators’ decisions.  We act as an extension of our clients and allow them to get on with providing care whilst we present the best version of our clients.  A version which is still our clients’ but is one that might not be as clearly shown without our assistance as a critical friend and partner.  We help to even the odds.  There is no magic wand and often we come up against regulators that hold entrenched positions whose minds are difficult to turn.  Turn they do, with concerted effort and considered thinking on the part of providers, ourselves and the regulators.

Please call us at Ridouts at the earliest opportunity to discuss your position and we might be able to avert a crisis in the future.  We are happy to speak with no obligation to discuss your position and actively encourage such discussions.  We are a champion of the health and social care sector and we are happy to speak about any issues that you may face.

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