David Prior, Chairman of CQC was recently quoted in The Telegraph as having said that the CQC has too often “backed off” from making attempts to close unsafe homes and “tended not to fight back” when it was legally challenged. He is quoted as having vowed to be “much more robust” in taking on poor providers of care. His comments go on to state: “What we are saying is we are on the side of the people in the home. And if that means sometimes bringing a case which is not legally watertight but we feel that it’s in the interests of the people living in the home then we will always do the latter”.
The CQC will begin to rate adult social care services on a four point scale of Outstanding, Good, Requires Improvement and Inadequate from this October. In 2013/2014, 68% of CQC’s inspections were of care homes and other adult social care services as this remains the largest sector that the CQC regulates. The CQC’s commitment to take action where it identifies areas of concern is reflected in its statistic that it issued a third more warning notices to providers for not meeting national standards of quality and safety in 2013/2014: 1,456 as compared to 910 in 2012/13.
As from 1 April 2015, eleven new fundamental standards will come into force for all providers regulated by the CQC, including Adult Social Care providers. These are new clearer statements of the standards below which care should never fail. These are joined by two new regulations, on fit and proper person requirements for directors and on a statutory duty of candour.
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The CQC is therefore currently consulting on its Guidance as to what providers can do to ensure they comply with the new regulations and how the CQC will respond and use its enforcement powers where services are in breach of conditions of registration, relevant legislation or regulations. This consultation will lead to the replacement in its entirety, from April 2015, of CQC’s current Guidance about Compliance: Essential standards of quality and safety and the 28 ‘outcomes’ that it contains. It will also replace CQC’s current Enforcement Policy. The new Guidance, when published will need to be taken into account by the CQC in making regulatory decisions about a provider’s registration and in proceedings for breaches. Departure from published Guidance provides grounds upon which decisions and enforcement action may be challenged.
The CQC envisages taking targeted enforcement action should providers fall below any of the standards set out in Figure 1 above. The objectives of enforcement action are to
- Protect people who use regulated services from harm and the risk of harm; and/or
- Hold providers and individuals to account for failures in how the service is provided.
All enforcement action will be taken with the aim of securing any or a combination of three outcomes:
- Requiring improvement
- Forcing improvement
- Holding providers to account
Improvement can be required by requesting a report from the provider or issuing a warning notice. Improvement can be forced by imposing, varying or removing conditions of registration, suspending registration or cancelling registration. A provider can be held to account by serving a fixed penalty notice, administering a simple caution or by prosecuting.
In the proposed Guidance, the CQC proposes to take a broader view than just reacting to individual events and concern, so that although enforcement must relate to breaches of legislation, its decision will also be influenced by whether a provider has ratings of “requires improvement” or “inadequate” and whether there is a history of repeated ratings of “inadequate”. The provider rating will have significance for the type of enforcement action required.
The CQC proposes to act proportionately, but is intending to stop the use of an ‘enforcement escalator’ which they state placed too much emphasis on issuing successively stronger warnings rather than taking action. Under the present regime, the CQC would normally start with compliance actions, and move through to warning notices, through to prosecution for the most serious offences. However, it is now asserted they will start with whatever level of intervention will achieve its purpose.
Breaching any of the six fundamental standards set out in Column B of Figure 1 above can result in prosecution and providers will generally be prosecuted for serious, multiple or persistent breaches without issuing a warning notice first. Although breaching any of the fundamental standards set out in Column A of Figure 1 is not an offence, they can still be enforced through civil powers such as imposing conditions, suspending registration or cancelling registration. Failure to comply with those civil powers would itself be an offence that may result in prosecution. Serious failure to meet some of the requirements which are not offences for example person-centred care and dignity and respect, would be likely to result in a breach of other requirements which are offences, such as abuse or safe care and treatment, and could therefore result in a prosecution via that route. In addition, the regulation on good governance and receiving and acting on complaints have clauses that require information to be provided to the CQC on request and breaching those clauses may result in prosecution.
The CQC’s proposed use of its strengthened enforcement powers means that care home providers are much more likely to face enforcement action which can have both a financial cost and be reputationally damaging. Given the CQC’s rhetoric on taking a more robust approach, it may be worthwhile checking that the proposed enforcement action is “legally watertight”, and that is a proportionate response. Seeking advice at an early stage is key.