Adapting to the new CQC investigation approach: guidance for healthcare providers
Stay up to date with our previous CQC guidance releases
Update on the single assessment framework
We previously commented on the move by CQC to adopt a new regulatory approach using its single assessment framework. CQC is now planning to roll this out for providers in November 2023. The roll out will start on a regional basis, commencing in the South of England.
CQC are also piloting their assessments of local authorities. However, it is unclear as to when the formal assessments will commence.
Integrated care system assessment pilots are also commencing, but again it is unclear as to when these will commence on a formal basis. It is anticipated that this will be some time in 2024.
S31 notices: beware the fast track
Where the CQC takes civil enforcement action, it will most commonly follow the Notice of Proposal procedure.
However, s.31 of the Health and Social Care Act 2008 provides the CQC with an alternative, speedier procedure to vary or remove a condition on a provider’s registration. This might impose a condition (such as prohibiting admissions ) but equally could be a variation of the provider’s registration to remove the location and thus close the unit quickly.
In order to rely upon s.31, the CQC must have a reasonable cause to believe that unless it acts under that section, a person will or may be exposed to the risk of harm.
When adopting the s.31 procedure, the CQC is required to give notice to the service provider that it is adopting this decision and to notify it of the date from when the notice will take effect.
When the s.31 procedure is adopted, the representation stage that follows a notice of proposal is omitted. Instead, the matter goes straight to the First Tier Tribunal.
The First Tier Tribunal adopts a fast track procedure for s.31 cases. Where a provider appeals against an s.31 decision, the CQC is required to respond with its response to the appeal within three days and the Tribunal will hear the appeal within 10 days. That is obviously important as urgent closure decisions need swift resolutions.
Where a s.31 is to be utilised, it is essential that urgent legal advice is obtained as matters will move very quickly.
Can the CQC demand that providers produce information to them?
Many of the powers exercised by the Care Quality Commission (CQC) are contained within the Health and Social Care Act 2008. The Act contains a specific power to enable the CQC to require documents and information. Section 64 permits the CQC to require information from, amongst others, any person who carries on or manages a regulated activity, and thus this will include all care home operators.
The power contained in Section 64 is to require the provision of information, documents or records which the CQC considers ‘necessary or expedient to have for the purpose of any of its regulatory functions.’ The power covers information, documents or records kept on computer or other formats, and if necessary the provider can be required to provide the information in a legible form (for example, downloading from a computer).
Failure to comply with a request under Section 64 is an offence punishable by a fine.
Section 65 of the Act also empowers the CQC to require prescribed persons to provide an explanation in relation to any relevant matter to the CQC. A ‘relevant matter’ is defined by the legislation as including any documents, records or other items inspected, copied or provided, or any information given under Section 64.
Accordingly, where the CQC needs additional input to understood documentation and information, it is entitled to require the provider to give that. Failure to do this is a separate offence.
Use of Section 64
The power contained within Section 64 is a very useful tool for the CQC. Where it has concerns about the provision of a service, the request for information can provide it with invaluable evidence to understand whether there are indeed problems.
Accordingly, where a request for information is received from the CQC, this should be treated very seriously. It almost certainly means that there are concerns about the service and it is considering enforcement action. That might include a notice of proposal to impose conditions on the provider’s registration or even close down a location or prosecute.
Responding to a Section 64 request
The response to a Section 64 request should be undertaken very carefully. Care should be taken to provide as much information as is relevant to answer the request by the CQC, but also, to the extent possible, deal with any anticipated concerns that they may have in relation to the service.
Early legal advice is often equally important to consider the likely thrust of the CQC’s concerns and make sure that the request has been properly answered.
Solicitors who specialise in advising care providers on CQC issues will also be able to assist them with action plans to address any service deficiencies. Early action of this sort may head off subsequent enforcement action, or at the very least, increase the prospects of defending it successfully.
Single assessment framework — tips to mitigate the impact
The CQC single assessment framework is anticipated to come into force some time in 2023. This will be a more ongoing form of inspection and will apparently allow CQC to respond more swiftly to information provided to them, rather than relying upon the existing periodical or response driven inspection process. CQC will continue to receive a flow of external information including:
- Whistleblowing information
- Formal CQC Notifications
- Local authority or ICB monitoring visits
- Coroner’s cases, especially if there is a neglect finding
- Referrals to adult safeguarding
- Direct Contact
- Posts on Facebook and other media
Implementing the Framework by reference to a more direct reliance on this information flow could well see a deterioration in ratings across the care home sector, which already has a limited number of services rated as Good or Outstanding.
What can providers do to mitigate this?
Providers obviously need to focus on the quality of their services and address swiftly any concerns that are raised as a result of the list above.
Clearly, they would be well advised to enhance their own quality control and audit systems. In addition steps could very usefully be taken to:
- Maintain a monitoring brief on social media.
- Keep records of plaudits and praise, such as Thank You
- Undertake regular resident/relative surveys and publishing the results.
- Increase the number of audits or quality assurance reviews, and then following up actively on the results.
- Ensure that feedback is collated from positive LA, ICB or GP visits – whilst it may be difficult to get these put in writing, the unit could always write to the relevant person thanking them for their visit and recording the positive things that they said. That email can be kept as evidence.
Whilst the Single Assessment Framework may have an adverse effect on ratings, it may also affect prosecutions. Information would suggest that there are more prosecutions or at least consideration of prosecutions now. This is reflected in the number of specific requests for information and documentation from CQC expressly on the basis that they are investigating whether prosecution is required. Often this may arise a long time after the event and although providers may be concerned at limitation issues, previous attempts to hold CQC to a “knowledge” based limitation, have been unsuccessful with the Courts.
Getting ready for the single assessment framework
The Framework will retain the existing CQC ratings and the five questions of whether a service is safe, effective, caring, responsive and well led. However, as set out in our previous briefing, CQC will also be considering topic areas and quality statements for each of those five questions.
Implementation of the Framework has been delayed, but providers can usefully be thinking now (if not already) about preparation for the new framework and how compliance will be evidenced.
Looking at the five questions, some things to consider are:
- Maintaining good records of incidents, investigation of them, promotion of learning and action plans.
- Systems to monitor and audit the care, and environment are in place.
- Communications with staff and residents are regular and effective.
- Adult safeguarding records, notifications and training can be evidenced.
- Reviewing staffing levels, training, and support.
- Ensuring good infection control and audit.
- Ensuring detailed residents’ need assessments are in place, and there is evidence of regular reviews of these and the relevant care plans.
- Effective policies and procedures are in place, and staff are trained on these
- Audits of care are effective and there is feedback to staff
- Varied activities are available for residents
- There is a careful review of nutrition issues
- Consent and mental capacity practice is appropriate
- Training for staff is up to date
- Regular resident/relative meetings are held and feedback gathered and given
- Care plans are regularly reviewed and can be shown to support service user choice
- Person centred care plans are in place and regularly reviewed
- Effective monitoring of care and environmental issues can be demonstrated
- Clear policies and training are in place
- Ensuring the Statement of Purpose is up to date
- Ensuring the staff team are well supported
- Audit and governance procedures are in place and effective
- Appropriate procedures are in place for whistleblowing, the duty of candour, complaints and safeguarding
- Notifications to regulators are made appropriate.
Appeals to the First-tier Tribunal
Providers who unsuccessfully make representations opposing a Notice of Proposal by CQC to vary their registration must appeal to the First Tier Tribunal if they wish to appeal CQC’s decision.
An appeal to the First-tier Tribunal must be made within 28 days of the Notice of Decision confirming that CQC wish to adopt a proposal. Specialist advice is crucial especially as there are several important tactical issues to consider when pursuing any appeal. Care and experience will be needed to consider the nature of the evidence needed to support the appeal, whether to use expert evidence and how.
Responding to notices of propsal
If the CQC is proposing to take civil enforcement action without following an urgent process, then they will serve a Notice of Proposal on the registered provider.
This gives the provider notice of the action that the CQC is proposing to take. Commonly, this is either to impose conditions on the registration or to close the home.
The Notice of Proposal is therefore most likely to be one of the following:
- Notice of Proposal to prevent future admissions without the consent of the CQC
- Notice of Proposal to remove one of the registered activities
- Notice of Proposal to remove the location from the provider’s registration (i.e. in effect, to close the unit)
- More recently, Notices of Proposal to impose positive conditions, such as the provision of information regularly to CQC
Where the CQC serves a Notice of Proposal, it is done pursuant to the Health and Social Care Act 2008. The registered provider then has 28 days to make representations to the CQC setting out why it is alleged that the proposal should not be adopted by the CQC.
It is clearly important that providers take the opportunity to make these representations and to make them as full and detailed as possible. If the CQC then decides to proceed with the proposal, those representations are likely to form the basis of an appeal by the provider to the First Tier Tribunal.
If an appeal is made (within 28 days of the Notice of Decision by the CQC to uphold the NOP) the proposal does not take effect until the conclusion of the tribunal process.
New Year, new CQC?
The advent of 2023 will see a new approach to inspection by CQC. There have been trials of the new approach through 2022 with some providers, but the intention is to roll this out for everyone in 2023. The precise date is to be finalised but it’s coming this year for both providers and commissioners, where CQC will have the extended role set out below.
A single assessment framework
Previously CQC used different frameworks to assess hospitals, adult social care, and primary care services. It will now be adopting a single assessment framework to simplify the assessment process and have one set of expectations. It is hoped that this will be clearer in identifying what is quality care and good service. The framework will apply to all registered health and care providers and will also cover the integration and commissioning roles of Integrated Care Boards and Local Authorities -which CQC are now to assess too.
A different type of inspection
Previously site inspections have been the core of CQC’s assessment of the service delivered by Registered Providers. Information included in the subsequently publicised inspection report has arisen from what has been evidenced at that point of collection. However, CQC are now moving towards a continuous approach to evidence gathering to enable a much more responsive assessment of a service. With that in mind, the gathering of information will include:
- Submissions received from care providers
- Contact with people using the service, including complaints made to CQC
- Formal CQC Notifications
- Information from third parties such as the police, commissioners, and safeguarding
This wider information gathering will enable CQC to establish “dynamic dashboards” to inform regulatory action, to make information more readily available to the public (a core purpose for the existence of CQC), and to provide a more responsive approach to ratings. It is hoped that ratings will change more often – obviously, there can be occasions where this is a benefit to an improving service, although perhaps it might be less helpful in situations where a provider faces a reduction in their rating.
Quality statements and topic areas
The five key questions currently used to assess a service (Safe, Effective, Caring, Responsive and Well-led) will remain, but the key lines of enquiry (“KLOEs”) are being retired. Instead, under each of the topic areas, there will be a series of “quality statements” (34 in all) to assess how that topic is being provided. The approach to assessment is considered in the form of a pyramid: at the top of the pyramid are the five key questions, followed then by the quality statements, and then evidence. The evidence will come from the 6 categories of evidence that CQC has published as being collected to allow them to make decisions:
- People’s experience of the service
- Staff and leaders’ feedback
- Partners’ feedback
This will enable CQC to replace some of the long inspection reports currently provided with much shorter scored statements, and even benchmarking against any other comparable providers.
The four ratings of Outstanding, Good, Requires Improvement and Inadequate will remain. However, it is intended that ratings will be based upon a wider range of information and based on a much more immediate and dynamic approach than the one-off inspection approach used previously. This “rolling” approach will also mean that ratings can be more easily changed as evidence will be collected on an ongoing basis. CQC have said that ratings can be changed at any time - but it remains to be seen what will prompt this, and the extent to which providers will have forewarning and an opportunity to respond in advance.
What will this all mean?
Like anything new, it remains to be seen how this will work when it is implemented at scale across the whole sector. What is, however, clear is that CQC will continue to focus on service user’s choice and personalisation of their care, which are referred to as a “golden thread”. It will also continue to keep a close eye on suspected closed cultures. The approach seems to encourage a system of regulation which is intended to be as closely based on the experiences of service users and other partners in the health and social care system, as possible
The use of benchmarking will contribute to that approach. It remains to be seen whether this will stifle innovation.
Historically CQC has been accused of inflexibility in making allowances for care providers who experience stresses in the system, such as those caused by the pandemic or the staffing crisis in the sector. There is clearly a risk that the new more rolling approach to ratings may mean a provider’s rating falls quickly – but it remains to be seen how quickly it will be increased.
The previous experience of providers who have turned around struggling services would suggest that there is a need for CQC to focus on acknowledging improvements just as quickly as they do problems.
As adverse information will be considered when reviewing a provider’s rating, providers should increase their focus on the collection of positive reports, comments, and plaudits. We all know that in life, a complaint tends to land more heavily than congratulations!
The dynamic approach will also reveal those services who are not effectively remedying issues in a timely manner which could give rise to greater opportunity for enforcement action to be taken.
The new system should however address a long-standing concern that reports take a long time after the inspection to be provided. Speedier production of shorter reports will thus make information available to the public promptly – although some providers will just find they get the bad news more quickly!
Our specialist team of care regulatory and CQC solicitors provide expert advice to the health and social care on CQC regulatory issues. Contact us to find out more about how we can help you prepare for the anticipated CQC inspection changes.