CQC are and have, for some time, been pressing the Department of Health for a change in regulation to allow it to publish information about enforcement action it has taken which “forced improvement”.
This was discussed at the CQC December 2016 Board Meeting where concern was expressed that CQC could not publish information about enforcement action it had in progress.
The current legislation does not permit CQC to publish information about any enforcement action it has taken on a provider until that action has been completed and only then if any representations or appeal made by a provider to such enforcement action fails. In other words, unless the action CQC takes is upheld, it cannot publish the fact that it was taken.
CQC believes that this undermines public confidence in its ability to take action that results in positive action. Indeed it was expressed, by the now Sir David, that when the regulations were drafted they were drafted in favour of providers and not that of service users. It is a little unclear which bit of “independent” regulator CQC fails to understand.
CQC enforcement activity is on the rise. It was revealed at the December 2016 Board meeting that there had been 1,667 published enforcement actions in the twelve months to October 2016 and there were an additional 1,037 enforcement actions in progress at that point. It was noted that enforcement action was running at 11% of CQC’s inspection activity, compared to 6-7% the previous year.
There is a whole range of enforcement action that CQC can take against a provider – from warning notices, to imposition of conditions on registrations to closure. CQC expressed concern that service users and their families may not find out about enforcement activity until they were expected to pack their bags and leave. Such cases are rare but it is even rarer, despite the prohibition to publish information on enforcement action, for service users and their families to be totally in the dark when CQC is seeking closure. Often the local authority will be involved and it may be seeking removal of service users because of the proposed action. But often the action is “proposed”. It is not a for-gone conclusion and can it be correct that CQC seeks to publicise action that may not even take place? There are other avenues available to service users and family members to at least get an understanding of CQC’s stance. The inspection report is one such option. However, in adult social care, CQC is only achieving 79% against a target of 90% of reports being published within a 50 day period (with other CQC divisions fairing worse). CQC’s inability to turn inspection reports around quickly enough to keep the public informed should not be a reason to disadvantage providers.
Where is the natural justice if CQC seeks trial by media? Any enforcement action allows a provider to make representations and/or appeal the decision. At each stage of the process the action may come to an end, for a variety of reasons, not just that improvements have been made. Those representations may say that the information CQC seeks to take is wrong, based on incorrect or flawed information, or indeed historical information. Often enforcement action can take many months to complete yet CQC seemingly wants to notify the public that the enforcement notice was sent out in the post to a provider.
Such action could be devastating to a provider. Ill-informed commissioners, service users and families may seek to leave a home, causing not only instability but possible closure. A provider should not have to make its case in a public arena. Back-door closure may save CQC time and money proving its case but it cannot be good for the sector or those it cares for.
CQC claims it seeks improvement from providers. If this is true, then it does not need to publicise this fact to boost its media image, rather those at CQC can sleep easy in their beds at night knowing their work has helped service users. The moral high ground can be theirs for the taking without destroying businesses, and in turn the homes of those it seeks to protect.