Avoiding Enforcement Action

Alison Wood | Associate

6 February 2020

Introduction

• Challenging inspection reports.

• Challenging ratings.

• CQC’s increasing use of civil and criminal enforcement powers.

• Avoiding enforcement action.

The Inspection

• Make thorough notes.

• Challenge the inspector if you need to.

• Raise concerns without delay.

Inspection Report

• Factual accuracy response:

• Challenge accuracy and completeness of evidence.

• New factual accuracy process:

• Phonecall from your inspector – use this opportunity to request any evidence relied on in the report.

“We will not release the inspector’s full notes from an inspection. We will consider requests for extracts of notes about a specific issue where this is reasonably necessary to enable you to understand the basis for a statement in the draft report that you believe is factually inaccurate (that is, if the basis of our statement is not clear from the draft report)”

• Strict 10 working days deadline from the date of receipt of the draft report.

• Evidence must be signposted in the form – CQC may otherwise disregard it.

Inspection Report

• R. (SSP Health Ltd) v Care Quality Commission [2016]

• Fairness of fact finding.

• Objective evidence.

• Independent CQC review.

SSP Case - Outcome

• Where a statement of fact is disputed by the Provider, CQC should:

• accept what the Provider says; or

• request copies of evidence; or

• state in the report that no evidence was seen at the time of the inspection but

that it has subsequently been told that evidence existed.

Challenging Inspection Reports – Factual Accuracy

• Opportunity for providers to challenge the accuracy and completeness of the information in a draft inspection report.

• Opportunity to submit additional evidence which CQC has failed to consider and /or to support inaccuracies and omissions.

• Cannot include any evidence that post-dates the inspection.

• Clearly identify the parts of the report that are incorrect and state precisely how the report should be amended.

• Challenge ratings at this stage – before publication.

Challenging Inspection Reports – Factual Accuracy

• Typographical errors (Section A).

• Information the provider considers to be factually incorrect – provider should be able

to produce further evidence in support of assertion of inaccuracy (Section B).

• Additional evidence regarding position at time of inspection (for "completeness”) –

items not currently included in draft report but provider thinks they should be as

should impact on rating – copies must be provided (Section C).

Case Study

• Safe: Three alleged breaches of the Regulations (12 – safe care and treatment, 18 -

staffing and 19 – fit and proper persons employed).

• Effective: Two alleged breaches of the Regulations (11 - need for consent and 18 -

staffing).

• Caring: ‘The service was not always caring.’ ‘Care provided was task orientated’.

• Responsive: One alleged breach of the Regulations (Regulation 9 – person-centred

care).

• Well-led: Alleged breach of Regulation 17 (good governance) and references to other

alleged breaches as detailed throughout the other key questions.

Case Study

Case Study

Case Study

• Safe: no breach of the regulations. ‘The service was providing safe care’.

• Effective: no breaches of the regulations. ‘The service was effective’.

• Caring: ‘The staff were caring, kind and compassionate towards people .’

• Responsive: no breaches of the regulations identified.

• Well-led: again, no mention of breach of regulations. ‘The service was well-led’.

Rating Review

• Rating reviews:

• Only grounds for requesting review is that the inspector did not follow the process for making ratings decisions and aggregating them.

• Must submit grounds for review within 15 working days of publication, stating which rating(s) they want to be reviewed and all relevant grounds.

• One chance to request review with 500 word limit.

• Providers cannot request rating reviews just because they disagree with judgements made by CQC – such disagreement to be dealt with through factual accuracy response and any representations.

• Final CQC process for challenging rating.

Rating Review Outcomes

Alternative ChallengesNon-legal challenges:

• Request a meeting with CQC:

• Try and forge a positive relationship, particularly if there are valid concerns in

the report.

• Take positive action that will reassure CQC that concerns will be addressed.

• Write a letter of complaint to CQC:

• State clearly what outcomes you want to achieve.

• Beware of delays, particularly if enforcement action is ongoing.

• Will rarely be resolved before the report is published.

• Complain to the Parliamentary and Health Service Ombudsman – need to exhaust

CQC process and have the support of an MP.

Legal Challenge

• Judicial review: A claim to review the lawfulness of a decision, action or failure to act in

relation to the exercise of a public function:

• Needs permission from the court.

• Short time limits (usually three months from the date of the decision/action).

• Not available if the matter can be resolved by another means.

• Expensive.

• Several remedies, including a Quashing Order, which effectively nullifies a decision

made by a public body.

Enforcement

• CQC Annual Report 2018/2019:

• Public awareness survey – only 60% consider that CQC can effectively monitor,

inspect and regulate the services they use.

• “To take decisive action to protect people, we have continued to strengthen our

approach to enforcement and increased the use of our civil and criminal powers”

• 2,206 enforcement actions in 2018/2019.

• 211 using criminal powers against 159 in the previous year.

• CQC prosecutions are increasing – safe care and treatment/health and safety

incidents.

Enforcement

• Patterns of prosecutions:

• Failure to accurately record care delivered, including: medication dosages and

strengths not being accurately recorded, allergy information not being recorded

and medication administration times not being recorded.

• Failure to assess risks to service users or questions over competency of who is

undertaking assessments.

• Staff training: e.g. failure to bring to the attention of staff a national safety alert.

• Reactive criminal actions.

Enforcement

• Civil enforcement action:

• Warning notices – use has decreased in the past year (1,089 in 2018/2019

compared with 1,343 in 2017/2018.

• Other civil action has increased (906 in 2018/2019 compared with 781 in

2017/2018).

Enforcement

• Imposition of conditions.

• Suspension of registration.

• Cancellation of registration.

• 28 days to make representations in response to a Notice of Proposal.

• Notices of Decision – appeal to the Care Standards Tribunal

• Tribunal process becoming more difficult.

Enforcement

• Urgent powers to suspend or vary conditions of registration:

• CQC must have “reasonable cause to believe that unless it acts… any person will

or may be exposed to the risk of harm”

• Take effect when the notice is given.

• Urgent power to cancel registration – application to magistrates court:

• Unless the order is made, there will be a serious risk to a person’s life, health or

well-being.

• Can be made without notice to the registered person.

• Providers with more than one home under its registration:

• CQC circumventing the need to apply to a magistrate to close a care home on an

immediate and emergency basis by issuing a Notice of Decision to vary

registration by removing a location.

Avoiding Common Pitfalls

• Staff recruitment checks, induction, supervision and training;

• Safeguarding: staff training, identification, recording, notification (Local authority, CQC, Police), investigation and lessons learnt;

• Capacity to consent and best interest decisions;

• Person-centred and up to date care plans;

• Staff knowledge of people’s needs and skills to meet those needs;

• Risk assessment and risk mitigation;

• Good governance, audits and quality monitoring, including monitoring of staff and evidencing management oversight;

• Thorough understanding of the Regulations, CQC and national guidance (NICE guidelines), KLOEs and rating characteristics; and

• Evidencing care delivered and decisions.

Alison Wood | AssociateAlison advises health and social care providers on a range of matters. She regularly acts for providers in relation to disputes and enforcement action taken by CQC, including appeals to the Tribunal.

She also advises and represents providers in safeguarding investigations, inquests and police investigations, including representing clients in police interviews.