At Ridouts, we have recently obtained an updated version under the Freedom of Information Act of the Guidance for CQC staff on warning notices, as well as information about their publication policy relating to warning notices.
Representations
The main observation is that the CQC procedure in handling representations on warning notices is far from straightforward. This is because CQC separates out what are described as representations on publication from factual accuracy issues which it says have to be dealt with under the factual accuracy check relating to the draft report.
The twin track process works as follows:
- The provider has to serve written representations against publication within 5 working days of service of the warning notice, although these cannot deal with any factual issues.
- Any factual issues have to be submitted under the factual accuracy check once the draft report is received. The provider has 10 working days to challenge any factual accuracy issues.
We understand that CQC is working to “harmonise” the two processes to allow a standard period for responding on the facts and other issues. If this is to work, CQC will have to be able to issue the draft report and warning notice at the same time and then give, say, 10 working days to respond to both documents. Until then, however, it is important that a provider submits their written representations against publication within the 5 working day period of service of the warning notice.
What is absurd about this current arrangement is that the compliance manager who is required to consider the written representations against publication (and who should have no prior involvement with the service) will only do so following completion of the factual accuracy check carried out by the compliance inspector for the particular service. There is no real justification for insisting on a 5 working day period for submitting representations if they are not going to be considered by CQC until the factual accuracy process is concluded.
There is an additional complication in that in our experience the factual content in the warning notice is normally more detailed than that in the draft inspection report. It will be important for a provider to submit factual accuracy comments on both the warning notice and draft report. The CQC guidance does not cover the mechanism for making factual accuracy comments on additional information in a warning notice that is not in the draft report. We recommend that factual accuracy comments on the warning notice are submitted to CQC within 5 working days of being served the warning notice. It will then be over to CQC to decide who reviews these comments. In all likelihood it will be the compliance inspector.
The provider should undertake a full factual accuracy review as soon as the warning notice is received, with or without the draft report. Any challenges on the facts may lead to arguments that findings and judgements are unreasonable. For example, if a compliance inspector fails to accurately record the number of care staff present on a shift, one can challenge the facts, the finding (inadequate staffing) and the judgement (e.g. major impact through lack of staff). CQC has in the past tried to argue that providers can only raise factual issues and cannot challenge judgements. However, the separation of representations on publication from the factual accuracy process must mean that providers as part of their representations can raise wider issues such as reasonableness and proportionality.
A significant change in the CQC internal guidance on warning notices is that it no longer tells compliance managers to ignore improvements made since the warning notice was issued when deciding whether to publish a press release or not. It will be important for providers to include improvements in their written representations against publication and draw to CQC’s attention that it no longer considers improvements to be irrelevant.
Providers should have careful regard to the time periods in question. A warning notice is deemed served:
- The day after it was sent, if served electronically (by email).
- Three days after it was sent if served by registered post.
- On the day it was given to the person if delivered by hand.
Most warning notices are served by email in our experience. Therefore, if a warning was served by email on Monday 3 December 2012 you would calculate the five working days as starting from 4 December giving the provider until midnight on Monday 10 December to submit written representations.
Publication of Press Releases
Understandably the publication of a press release about a warning notice is a major concern of the provider faced with the prospect of what might be intense media interest.
CQC has issued guidance to its staff that press releases will be issued unless the representations against publications are upheld. However, if the representations are turned down, CQC says that if the concern in relation to a particular Outcome is a moderate, it will publish a press release on the provider profile on the CQC website but will not actively distribute the press release to local and regional media outlets.
A particular concern relates to “out of date” notices which covers situations where publication of a press release may be delayed either until after the service has been re-inspected and found to be compliant or when the deadline for improvement has already passed and the service is due a re-inspection. At Ridouts we question the need to publish a press release in these circumstances. If publication of a press release has any justification it is to alert the public in a timely fashion of alleged non-compliance that has led to service of a warning notice. There has to be a purpose behind publication; it is not a sanction.
Conclusion
If a warning notice is capable of being challenged it should be, given that it can have dramatic consequences for a service. We have come across situations where commissioners have automatically imposed an embargo on a service served with a warning notice. It may also affect the willingness of banks to extend lending or lead to increased insurance premiums. Furthermore, it can lead to enforcement action from CQC should it judge the provider non-compliant on re-inspection.
Given the procedural and evidential complexities of warning notices, providers should obtain early legal advice.
If you have been served with a warning notice, please do call us. We’re here to help.
