The CQC’s regulatory regime has historically centred around a schedule of inspections of providers to assure itself of the quality of care offered. It seems apparent that following the decision to suspend inspections in March 2020 that the CQC will be looking to move away from its historic model of inspections for inspections’ sake. Its new model is likely to be more closely aligned to the information about risk that it gathers from providers and stakeholders to inform it of the regulatory action that needs to be taken.
In CQC’s strategy 2016- 2021 there was a focus on using information gathered from providers and stakeholders to target CQC’s resources more effectively. The suspension of inspections seems to have forced CQC to address the issue more head-on given its inability to conduct inspections in the routine way. In September 2020 CQC will move to a transitional phase where it will build on the largely remote monitoring of providers in the past five months with physical inspections returning for services who need to improve, as well as those where risks are identified. Then, in May 2021, CQC will move to its new strategy which is being developed at present. We don’t yet know precisely how CQC will choose to carry out its activities and there is an element of crystal ball gazing here but what is this new strategy likely to mean for providers?
Practically speaking it is likely to mean a decrease in inspectorial activity en-masse across all providers with more emphasis and resource being thrown at providers that are deemed to be a concern. With the decrease in frequency of inspections undertaken this may bring with it a change of approach which may result in coming down harder on those providers who are caught in CQC’s crosshairs with increased amounts of time to dedicate towards such action in the absence of more routine inspections.
Interestingly, when writing about assessment and monitoring of GPs, CQC announced that they will be trialling the gathering of evidence without a physical inspection of a small number of services. This could increase the risk of errors being included in information obtained about a service. Providers should ensure that any metrics upon which information about its service is generated is properly entered, regularly audited and is understood by it. This GP trial of the gathering of information without attending a service could be the basis of the future of monitoring of providers more broadly, if the approach proves to be successful.
There has, on occasion, historically been a lack of evidence which supported action taken by CQC against providers, over and above anecdotal examples which are extrapolated and multiplied to reach negative conclusions. The bar to be met in CQC taking action has at times been relatively low based on isolated incidents which have not always justified findings that are made in inspection reports and enforcement action taken on the back of these.
If CQC do take the step to focus more diligently on enforcement action outside of the schedule of routine physical inspections and instead rely on information gathered about a service it would be prudent for CQC to build on the evidence base that it has to support the action it chooses to take. Providers may find it even more difficult to challenge CQC’s findings if the action that is contemplated is supported by compelling evidence which is supplied to providers over and above the narratives that are currently supplied with enforcement action. Currently the action that is taken by CQC does not include the evidence that it relies on which makes it difficult to challenge CQC without a detailed analysis of the evidence which disputes CQC’s findings. Whether CQC continues not to supply the evidence or begins to supply the evidence which supports its findings providers would benefit from external advisers such as us here at Ridouts to support them in managing their regulatory relationship with CQC and providing effective challenge. It should be noted that CQC did consult on and ultimately decided not to include evidence alongside its reports in June 2017. Whether CQC is now amenable to being more transparent with providing the evidence which supports its findings remains to be seen.
It seems clear that there won’t be a return to the way that CQC performed its activities pre-covid-19. Quite outside of the issues with physical visits this presents an opportunity for CQC to recast how it chooses to regulate providers. It seems likely that there will be a greater reliance on evidence which can be gathered outside of inspections themselves with a focus on information gathered from alternative sources- remotely through the provider or local authority or the public for example. The accuracy of these alternative sources is not known however instances of negative practice are likely to be identified more frequently with the shift in focus and trigger action from CQC possibly without merit.
With capacity being freed up by CQC officers possibly not undertaking routine inspection as often in the future, providers may find themselves under increased scrutiny by a more determined regulator. It doesn’t seem likely that CQC will abandon physical inspections in their entirety but they are likely to be resumed with a lighter overall schedule. The critical point of defence for providers remains, however CQC chooses to cast its post- May 2021 phase, that the evidence in the providers’ possession and the actions that it has taken or takes are within the providers’ ultimate control. It will be more important than ever for providers to ensure that the evidence base which supports the quality of care that is provided is robust and actions that are taken to address issues are properly recorded. Where the provider disagrees with CQC’s findings it should push back and have the evidence required to rebut CQC comprehensively.
Pre-Covid inspections often brought with them a number of problems for providers: – lack of triangulation of evidence; subjectivity; inconsistency; over emphasis on one incident to ‘downgrade’ the service. Providers would often turn to Ridouts to challenge the inaccuracies in the report and through carrying out an almost forensic review of the evidence, we would often obtain changes to reports. Should CQC seek to rely on third-party information to justify enforcement action it seeks to take, providers face an even greater challenge to ensure that they understand the criticism being levied and have a right of response. Having someone external to the provider to be a critical friend to support you in robustly challenging the relationship with CQC can make a difference to minimise the chance of CQC’s action negatively impacting your business. Should you be a provider in need of support after receiving a bad inspection report or a letter from CQC containing a Notice of Proposal or Notice of Decision imposing conditions on or seeking to cancel your service’s registration please get in touch and we’d be happy to assist.