The number of Warning Notices being served on providers by CQC has increased significantly over recent months. CQC has indicated that it will publish a press release summarising each Warning Notice unless the provider can persuade CQC not to do so. The window for making written representations to CQC about the Warning Notice is five working days from service so time is of the essence.
At Ridouts we have encountered serious weaknesses in how CQC goes about drafting Warning Notices, as well as the manner in which CQC deals with written representations from providers. We would highlight the following in particular:
- A failure to be sufficiently clear and precise about the alleged breach. Often the alleged facts are simply listed rather than clearly linked to a particular regulation or regulations.
- Paragraphs in Warning Notices often have insufficient detail and/or identify a diverse range of issues such that it is not always clear what is being judged as wrong. This lack of clarity is all the more worrying given that Warning Notices no longer set out what action the provider is expected to take to achieve compliance. Urgent clarification from CQC should be sought in the event of uncertainty about what CQC is saying is non-compliant.
- Factual inaccuracies, as well as assumptions about service delivery, which are easily capable of challenge.
- Setting unrealistic timescales for compliance. Recently, we acted for a domiciliary care provider who, under their Warning Notice, was given only two weeks to revise nearly 200 care plans.
- Serving the Warning Notice in advance of the draft Compliance Review Report. It would make more sense for CQC to consider the provider’s comments on the draft Report in deciding whether to serve a Warning Notice and publish its contents.
- Only giving providers five working days to put in a written response, which is often unrealistic, particularly when dealing with multiple Warning Notices. We deal with cases where six or more Warning Notices have been served. It is only CQC policy to allow five working days to respond, not a statutory requirement. If more time is needed, it should be requested.
- Informing providers that CQC cannot consider representations about the content of the Warning Notice, only about its publication. This is nonsensical and fails to follow the legislation, which states that providers can make representations on the contents of a Warning Notice. In our view, the right to make representations extends to judgements and opinions in Warning Notices, not just matters of fact.
- Issuing press releases that sensationalise the issues. There is an issue about the appropriateness of placing matters in the public domain, which could well be the subject of legal proceedings at a later date. Equally, CQC might publish information about a Warning Notice before it has given the provider a proper chance to respond. A provider can suffer significant reputational damage from the unjustified publication of information contained in a Warning Notice.
When served with a Warning Notice, a provider should consider its contents very carefully. In our experience, Warning Notices are frequently deficient for the reasons given above. There may well be technical legal arguments that can be put forward by the provider around the validity of the Warning Notice. At the same time, there may also be issues of accuracy, proportionality and reasonableness in terms of the allegations.
In most cases, the Notice will refer to an alleged continuing breach of a regulation with a time period for compliance. There may be an argument that the breach is not continuing (it may already have been rectified) and this should be pointed out to the regulator in representations.
If it is clear from the wording of the Warning Notice what the breach is and there is merit in the allegation of continuing non-compliance then the provider should, to use the words in the Regulations, take all reasonable steps or exercise all due diligence, to achieve compliance. There is a risk of prosecution, or other enforcement action, if a provider does not comply with the Regulation by the end of the time period stated in the Warning Notice. However, even then there may be issues about the reasonableness of the time period given to achieve compliance and what is expected of the provider by CQC that necessitate representations being made and/or clarification being sought.
Early legal advice is essential in determining the appropriate response to a Warning Notice. Assistance is likely to be required in drafting written representations. It may be necessary to challenge CQC about the terms and reasonableness of a Warning Notice and to demand that it not be published. That may require the threat of a judicial review challenge.
At Ridouts, we have considerable experience of advising providers on Warning Notices. Please do contact us for a free initial consultation. We are here to help.
