Under the CQC’s current approach to focusing inspection activity where they deem there to be a risk, GP practices can expect to start experiencing more negative on-site inspections than they might have been used to, and enforcement activity could become more common.
The CQC has various powers of enforcement but one of the most draconian is in section 31 of the Health and Social Care Act 2008, under which they can decide to impose, remove or vary conditions of registration, with immediate effect.
Whilst it cannot be used to cancel an entire provider registration, section 31 can, in practice, have just as serious an impact. It can bring a practice to its knees, literally overnight in some cases.
A section 31 decision can be appealed to the Care Standards Tribunal, but this is not a cheap or easy route, nor does it guarantee success. Even under the fast track mechanism, damage can be irreparably done long before a Tribunal hears the case.
At the extreme end, practices may have already closed, and lost staff and patients. Even at the less extreme end, burdensome conditions can be resource heavy to comply with. The impact on finances and reputation can be crippling.
Simply put, the best way to deal with section 31 enforcement, is to avoid it. Thankfully the CQC often – though not always – give some form of warning if they are considering it, either informally or in a notice of proposed s31 action, or “Letter of Intent”.
Avoiding section 31
Successfully avoiding section 31 action at this stage normally requires 1) positive and proactive, but carefully managed, engagement with the CQC promptly after the inspection; and/or 2) responding to a Letter of Intent in a way which addresses the CQC’s concerns to such an extent that they are satisfied that urgent enforcement is not necessary to prevent people being exposed to the risk of harm.
Letters of Intent and threats of other enforcement might be scary, but if handled properly they can be an opportunity to make the problem go away. The timescales for a response are often very short, but GP Practices should make every effort to respond, in the way and form requested, by the original deadline. The right reaction can make all the difference.
A Letter of Intent normally requires an Action Plan (we prefer the term Improvement Plan) to be submitted, addressing certain stated concerns. There is no right way to prepare an Improvement Plan and there is a limit to what can realistically be achieved in a short time but from experience the best ones:
- Cover ALL stated concerns with at least one action (even if the concerns are disputed, or have been resolved already);
- Set clear, realistic and measurable targets and timescales;
- Include mechanisms for monitoring and review, and expert or independent oversight/input;
- Identify risk and risk mitigation measures;
- Have clear actions and owners so it can be clearly monitored for progress;
- Provide for patients and other stakeholders to be kept suitably informed (where appropriate); and
- Relate back to regulatory requirements where relevant.
Importantly, any Improvement Plan, whether prepared in response to a Letter of Intent or otherwise, needs to be achievable.
Keep your plan under review
If the CQC accept it is enough to prevent serious enforcement action for now, they are almost certainly going to measure ongoing performance against it going forwards. It therefore needs to be realistic, and preferably allow for some flexibility. It is also critical that it is kept under review, and is updated (and added to or amended) at appropriate intervals, particularly if it was prepared in a rush in the first place.
GP practices will also need to carefully manage relations with the CQC and other stakeholders in parallel with any enforcement threats. They will remain under scrutiny and enforcement action could still follow at any time, so they should be hyper-aware of meeting their regulatory requirements and contractual obligations during this period and should also be wary of self-incrimination in any communications with the CQC.
They should, for example, avoid making statements which might prejudice a future appeal or enforcement challenge, in case – despite best efforts – that might be necessary. They certainly do not want to make things worse.
For practices reeling from a negative inspection experience, all this can all be difficult to co-ordinate successfully, but it is not impossible. Seeking legal advice is advisable as soon as enforcement activity arises as a possibility, but particularly in the case of section 31 action. Providers may not only need to take urgent steps to avoid it in the first place, but will also want to navigate the relationship with the CQC (and other stakeholders) very carefully in the aftermath, otherwise those steps may be in vain.
Ridouts specialist health and social care lawyers can assist GP practices facing enforcement from the CQC, or threats of it, and can advise on regulatory matters and engagement more broadly. For more information, please contact us on 0207 317 0340 or request a call back via our website.