Winter is Coming – Will it Bring Increased CQC Enforcement Action? As published in Caring Times

On 18 September 2020, the Government published its ‘Covid-19 Winter Plan 2020 to 2021’ setting out the national support for the adult social care sector in England to curb the spread of coronavirus (COVID-19).

It contains a number of support measures and is accompanied by a welcome commitment to provide over £500million of additional funding to extend the Infection Control Fund to March 2021.

However, it may not all be all positive news for Providers.

The DHSC press release heralding the publication of the Winter Plan states that the Government:

is prepared to strengthen monitoring and regulation by local authorities and the Care Quality Commission (CQC), including asking them to take strong action where improvement is required or staff movement is not being restricted. This can include restricting a service’s operation, issuing warning notices or placing conditions on a provider’s registration.”

Does this spell the end of the supportive role that CQC professed to be playing at the outset of the COVID-19 pandemic?

It certainly appears from this statement that Providers should be braced for tighter regulation and increased enforcement action. Just what they need while trying to deal with a second wave of coronavirus.

What does the Winter Plan say about any strengthening of CQC monitoring & regulation

The Plan itself does not contain a huge amount of detail surrounding any strengthening of regulation by CQC. In fact, the specific section of the plan related to the CQC’s involvement is headed “CQC Support”. That section refers to the actions that CQC will take in terms of both regulation and sharing best practice.

On CQC regulation specifically the Winter Plan states that:

The CQC will:

  • introduce a Transitional Regulatory Approach from October, which will bring together existing methodologies with new learning from its COVID-19 response. This approach will place people who use services at its centre, and will focus on safety, access and leadership;
  • develop a new approach to monitoring, which will capture a much broader range of topics, as part of the monitoring process, to present a clearer view of risk and quality;
  • increase the number of physical inspections, focussing on high-risk providers where there are safeguarding concerns, the provider has an overall rating of inadequate, and other factors;
  • continue to inspect any service where people may be at risk of harm and publish a report for each inspection in line with normal procedures;
  • ensure that all inspections of care providers consider how well services are managing infection prevention control, taking swift regulatory action where provider-level performance requires rapid improvement, including adherence to infection prevention and control measures for visitors; and
  • ensure information on additional risks and pressures are raised with national government and relevant system partners.

The roll out of the Transitional Regulatory Approach has of course now been confirmed for 6 October 2020 onwards in Adult Social Care.

The commitment above in the winter plan to “increase the physical number of inspections based on risk” is interesting. Despite CQC’s position that its “regulatory role did not change” throughout the pandemic, CQC were heavily criticised in some quarters for failing to cross the threshold of services at the outset of the pandemic. It looks fairly clear from the Winter Plan and CQC’s own Transitional Regulatory approach that CQC does not intend another pause on inspection during the second wave of COVID-19.

Instead, the language in the Winter Plan and the Transitional Regulatory Approach, focuses on inspection activity that is targeted and on risks and concern including Inadequate services. This is a shift from the previous CQC strategy that promised to focus inspection activity based on risk and improvement. Whilst it will be argued that this approach will focus inspection resources based on risk at a time when there are real threats to service users in the form of the pandemic, it could actually mean increased risks if services who, on the face of it are not presenting immediate concerns, are not inspected as frequently as they should be. It will also likely mean that services which are rated as Requires Improvement or Good who wish to improve their rating may wait much longer for an inspection visit that will result in a re-rating. The focus of increased enforcement action in the Winter Plan appears to largely be around infection prevention and control measures. The plan repeatedly makes reference to the CQC’s enhanced scrutiny of this as part of their Infection Prevention Control inspections and the fact that they will take “swift regulatory action where needed.”

The Winter Plan highlights that CQC’s scrutiny in this area will include adherence to infection prevention and control for visitors and again refers to CQC taking swift regulatory action where standards are not being met and provider-level performance requires rapid improvement.

The language of scrutiny at Provider, rather than location level, means that a problem at one service could lead to scrutiny across all. At Ridouts we are already beginning to see this happen for Providers with multiple locations. Provider level enforcement action could have potentially catastrophic consequences for a care business if, for example, CQC took action to de-register the Provider rather than individual locations.

Other areas highlighted in the Winter Plan to be of interest to CQC from an enforcement perspective would be any inappropriate use of DNACPR.

What would CQC’s “swift regulatory action” look like?

This is not detailed in the Winter Plan nor is it referred to in the statement on the Transitional Regulatory framework. However, the introduction of both of these policy documents has not changed CQC’s statutory powers of enforcement. The CQC has the same enforcement tools at its disposal that it always has. These include, warning notices, conditions of registration or proposals to cancel registration.

At Ridouts we have seen a marked increase over the last month or so in CQC using letters of intent requiring urgent action plans and/ or the urgent imposition of section 31 conditions of registration as its means of “swift regulatory action” following inspection.  However, when the detail of these is drilled down, they are not always necessary or justified and they can and should be defended by Provider’s where it is appropriate to do so

COVID-19 has not changed CQC’s statutory duty to have regard to the need to ensure that enforcement action taken in respect of Providers is targeted only where needed and that is proportionate to the risks against which it would afford safeguards. It is important that Providers faced with enforcement action take swift advice if they find themselves in that situation. Whilst responding to such action may seem like an additional burden in the current already very difficult operating climate, the consequences of not responding could have an extremely detrimental effect on care businesses such as restrictions on admissions or worse, closure of locations or de-registration at Provider level.

Ridouts can provide specialist advice on this and all aspects of CQC inspection and enforcement action to help lighten the load. Often the first step will be a robust factual accuracy response which, in some circumstances might stave off a threat of enforcement action. However, even if it does not, that does not mean it is not possible to successfully defend the enforcement action. In those circumstances, early and specialist legal advice should be sought to help you to protect your position.

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