As we watch with interest as its new regulatory strategy develops, the CQC has announced that they will be carrying out a monthly risk review of most services in the health and social care sector as part of their “Monitoring Approach”.
This approach to regulatory activity appears to build largely on the Transitional Monitoring Approach (“TMA”) and Emergency Support Framework (“ESF”) which the CQC adopted during the pandemic. The CQC have announced that they will review risk in (most) care services and where they deem further information is required, the CQC will be making contact with providers to take part in “Monitoring Calls” to “gather more evidence about the quality of care in your service”.
Whether or not these Monitoring Calls will take place on every monthly risk review, it is probably safe to assume that if the CQC are reviewing risk more, they will find more and more gaps in the information they think they need, and providers are likely to be seeing more and more of these calls going forwards.
Despite the CQC’s clear statement that these calls are not inspections and providers will not be rated afterwards, providers should treat Monitoring Calls like a telephone-based inspection. The CQC has published the list of questions they expect to ask for each type of service. These loosely follow the CQC’s published “key lines of enquiry”, i.e. to help the CQC decide whether a service is Safe, Well-Led, Responsive, Effective and Caring, and what rating to apply for each, and overall. They are likely to play a significant part in the CQC’s view of a service at any given time, to what risk profile they attach to a service and therefore to how much or little scrutiny they will be under. The CQC might still seek to proceed with enforcement activity or physical inspections (and re-ratings) if they are told something during a call which concerns them.
Further, whilst the calls might not affect ratings today, we know the CQC is looking to adopt a more flexible approach to ratings going forwards, so they may well have a vision that these Monitoring Calls (or risk reviews) will start impacting directly on ratings decisions in the near future.
Leaving aside our doubts about the quality and consistency of CQC’s view on risk and ratings more generally, more regular risk review and better engagement with providers could be a positive thing from the sector’s perspective. It could give the CQC a better oversight of services on a real-time basis and in turn allow them to inform the public about the standards of care more promptly. However, it does beg a number of questions as to how the CQC will actually undertake their assessment of risk in the first place and how they will use the information they get in Monitoring Calls. It also raises questions about how far the calls will feed back into the risk review, and how often might they prompt physical inspection activity or impact ratings decisions. Further, how will a provider be able to provide positive information if the CQC are simply gap filling? Clearly the sector needs to know more and will need to have a better understanding of what to expect.
Unless and until we do, we can only speculate, but it does not take a rocket scientist to work out that the more providers have to engage with the CQC, the more work and stress it creates for providers. The calls themselves might only be for an hour or two, but management time is precious in a busy service, and the CQC routinely follow up provider calls with onerous and lengthy requests for information or evidence with very short deadlines.
Aside from the time, effort and stress which any increase in regulator engagement can cause providers, we also have concerns about the CQC’s approach. We have written various articles about some of our concerns in the context of the ESF and the TMA and whilst the CQC’s approach might have moved on, our concerns and our advice to providers has, broadly speaking, not changed. In very simple terms, the CQC’s approach remains unclear and uncertain, and puts some of the procedural and process safeguards which providers might have otherwise have in respect of CQC inspection, rating and enforcement activity at risk.
Providers should not try and avoid the Monitoring Calls and should not be obstructive with the CQC. However, they should approach them with caution and treat them as seriously as they would a comprehensive inspection. Preparation, good record keeping and, where suitable and valid, putting objections on record when the CQC get it wrong are likely to be key.
To this end, providers should, in preparation, at the very least:
- Read the questions as they apply to their service(s) in advance.
- Prepare responses in advance where possible (and revisit them periodically) and ensure that these can and meet the CQC’s published “key lines of enquiry” and the Monitoring Call questions.
- Ensure that there is thorough, and up to date documentary evidence in support of responses, and ensure that those can be located quickly. The CQC may ask for evidence and evidence should (if relevant) be sent promptly.
- Ensure that all relevant staff know and understand that the calls will take place. In particular ensure that management (or whoever would be involved in the calls) have seen the questions and understand the service’s approach to the calls and the importance of demonstrating compliance in any responses given.
- Remember this is all about risk. If a provider was previously rated inadequate / requires improvement or found to be in breach of any regulation (or the CQC raised any concerns about a service previously), be prepared to give clear and positive information on improvements, or how any previous shortfalls/concerns have been addressed, and continue to be monitored to show that the CQC do not need to be concerned about risk.
During Monitoring Calls, providers should have more than one person in attendance so that someone can take a detailed note of all questions asked, responses given, any documents shared with the CQC during the call, and any follow up information or documents requested (and why it has been requested). They should be particularly careful to note any questions asked which are not on the published list.
Most importantly, just because the calls are by telephone and the CQC might reassure providers that they are not inspections and they will not be rated afterwards, providers should always remember that something they say in a Monitoring Call could be used against them. The CQC has a wide range of enforcement powers and have made it clear that they are looking to use them more often, and more quickly. If providers are in any doubt about their legal position when engaging with the CQC or are threatened with enforcement action, they would be wise to seek independent legal advice at the earliest opportunity.
If providers experience any difficulties or have any concerns with their Monitoring Calls, would like advice on how best to prepare for them, or require advice on CQC engagement more generally, Ridouts can assist. Providers can contact us by telephone on 0207 317 0340, by e-mail to firstname.lastname@example.org, or by requesting a call back via the contact pages on our website.