On 21 August 2015, the Nursing and Midwifery Council (NMC) hearing in relation to failings at Brithdir Care Home (the subject of the UK's biggest inquiry into alleged neglect) finally concluded.
Three nurses were struck off, one was suspended and the former manager of the home was given a caution order. The NMC’s hearing and deliberations had lasted 81 days. Not satisfied by this result, some of the families of patients at the home vowed to continue campaigning for criminal cases to be heard. Earlier a police inquiry collapsed when Brithdir owner, Dr Das, was declared unfit to stand trial.
It is interesting to consider the different process that may have been followed if the Care Quality Commission (CQC) had taken action. (The CQC was established in 2009, after the home had closed.) All providers of health or adult social care in England must now be registered with the CQC. The CQC monitors these registered individuals and has at its disposal a range of powers to deal with any perceived risk of harm.
The CQC’s civil powers are analogous to those of health and social care regulators like the NMC, GMC, or GDC. Where the CQC considers that there has been a breach of relevant regulations, but this does not constitute a criminal offence, it can use its civil powers to:
impose conditions upon registration (such as preventing a regulated activity from being carried out in one location); suspend registration for a specified period; or cancel registration.
However, the process which the CQC follows when exercising these powers is significantly different. One major difference is the length of the proceedings. Some have criticised the length (and cost) of the Brithdir hearing for being disproportionate. The length of NMC hearings (in common with hearings before other healthcare regulators, such as the GMC) is largely down to the fact that registrants are given an opportunity to challenge the regulator’s evidence, and to present their own case. The Committee then has the difficult task of weighing up all of the evidence that has been presented to it, both by the regulator and by the registrant, in order to reach a determination. Full reasons for that decision are usually published in a public decision.
In contrast, the CQC does not wait for witness evidence to be gathered, a hearing to be convened and a decision made by a Committee before taking action. If the CQC assesses that service users have suffered harm or are at risk of harm because a registered person is failing to comply with legal requirements or care services substantially fail to meet the standards set out in the regulations, it will act without delay. In this respect the CQC operates like a number of other statutory regulators, for example the HSE, SIA (for licensing issues) and the HFEA. This means that, unlike the system for nurses, social workers or doctors etc, there is only a small window of opportunity for care home managers to respond to or act upon communication from the CQC in relation to any investigation of their registration.
So what procedure does the CQC follow if it decides to act?
Firstly the CQC will serve a Notice of Proposal on a registered person to impose condition(s), suspend or cancel their registration. This notice will include a statement of reasons for the CQC’s proposed action and will ask for written representations to be made within 28 days. If representations are not made within this period, a Notice of Decision will be sent to the registered person. This decision will be made without a hearing. If representations are made within this period, the CQC will consider them and either decide to proceed with its proposed Notice of Decision, or will reconsider the matter. Again, the CQC will make this decision without holding a hearing. The CQC sometimes uses an alternative “urgent” procedure if it has reasonable cause to believe that this is necessary to avoid a risk of harm. This procedure provides the registered person with even less opportunity to put forward their case, as it allows the CQC to take action without first serving a Notice of Proposal.
How should care home managers deal with any CQC process?
If you receive a Notice of Proposal, you should immediately take legal advice. It makes sense to try to provide representations within the 28 day deadline and to make the most of your opportunity to respond, otherwise your registration may be suspended/cancelled or made subject to conditions automatically. It may well be possible to mitigate any penalty through your petition of your case. While there is always a right of appeal after any decision has been made, this is likely to be much more expensive and time-consuming than providing representations in advance. It will also be prudent to “put your house in order” before the CQC takes action on your registration. Burying your head in the sand is not the wisest course. Demonstrating that repeat mistakes or further failings are unlikely to occur may help influence the outcome. If the CQC have used their “urgent” procedure and you receive a Notice of Decision without having been given with an opportunity to make written representations, do not despair. All is not lost. A lawyer will be able to advise you of your prospects of success in an appeal.
The remit of the CQC means that it will act swiftly and take decisive action where there are concerns with respect to the safety of care home services. There are good reasons for this, but it does mean that it is vital that care home managers engage with the CQC’s process at the earliest opportunity. Representations are possible but timing is of the essence given that protecting service users is the CQC's ultimate objective.
This blog was originally published as an article in Caring Times in October, 2015.