Guide to ……….Notices of Proposal and Appeals

What are they?

Unless the need is urgent, CQC must issue a notice of proposal before it does any of the following:

1. Cancels a registration.
2. Imposes a condition on a registration.
3. Varies a condition (including removing a location).
4. Refuse an application relating to registration.

The notice sets out the action CQC proposes to take giving full reasons and attaching evidence.  In relation to a notices other than to refuse a new application, the notice will usually set out a history of non-compliance.

 

Effective Management

1. You have 28 days to respond to the notice from the date of service. CQC will then make a final decision.
2. Include a detailed action plan setting out what you have done to remedy issues, and prompt but realistic deadlines for any outstanding matters.
3. CQC will also expect evidence to support any claims you make about the action you have taken to date. For example, if you have redrafted care plans, they will expect samples to be provided.
4. You are more likely to succeed at this stage if you also reassure CQC that you have made improvements to your quality assurance processes. That may include designing and implementing new audit tools that reflect all CQC regulatory requirements, and are effective at identifying areas for improvement before CQC does.  The quality assurance system should also ensure that progress on action plans is regularly reviewed.
5. Investing in operational support at this stage to help with remedial action, audits and designing new systems may result in CQC ending its enforcement action, which will be significantly less costly than if the matter proceeds to an appeal.
6. If the notice of proposal contains factual errors, you should identify them in your representations.  However, representations will very rarely succeed based on factual errors alone due to the quantity of issues that are likely to be raised in notice of proposal, usually over a sustained period.
7. If you have a new registered manager in post, you should bear in mind that enforcement action incurs a risk for them too. They may abandon ship for a less risky role down the road.  Consider incentivising them to stay, for example by a bonus when the enforcement ends.  The same applies if you are recruiting a new manager.  Candidates are more likely to opt for less risky services, so your incentives need to reflect that.  A lack of continuity in management is likely to impact adversely on your improvement program and will not engender CQC’s confidence.
8. Consider your strategy of communicating with other key stakeholders including staff, relatives, residents and commissioners. They will be more supportive if you are open and reassuring and will be more unsettled if they hear important information from third parties.
9. The stakes are high, so legal advice is usually appropriate. This should be accessed as soon as possible after the notice is served.

 

What next?

1. CQC will consider your representations and make a final decision. If it accepts your representations, it will decide not to adopt its proposal.
2. You will still need to keep a close eye on the service to ensure that improvements are sustained, and in particular that your quality assurance system remains effective at identifying and resolving areas for improvements.
3. If CQC adopts its proposal, you have 28 days to appeal to the Tribunal.
4. If the matter proceeds to a final hearing, the Tribunal will decide the appeal based on evidence right up until the date of the hearing so you will still have ample opportunity to beat the enforcement action through improvement.
5. CQC will usually inspect again before the final appeal so that it can provide recent evidence to support its case. You should therefore be ready for such an inspection throughout this period.
6. Appeals frequently settle based on improvements made before the final hearing. Often, CQC will be agreeable to a stay appeal to enable such improvements to take place.  This can give you more time if you need it.
7. It is usually advisable to instruct an independent expert to give a view as to the quality of the home. To maximise the weight that will be given to such opinion evidence, the expert should not be a consultant you used to help you to improve the service (though any such witnesses can be called in addition).
8. Other likely witnesses will include the manager and someone from the senior management to explain how quality assurance will be maintained.
9. Hearings take place before a tribunal judge and two lay tribunal members who will have some connection to the health and social care sector.
10. A written decision will be handed down, usually a few weeks after the hearing.

In a nutshell

1. The focus throughout should be on evidencing improvements.
2. Thoroughly review your quality assurance system.
3. Seek legal and operational help promptly.
4. Keep key stakeholders on side.

 

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Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: [email protected]

https://www.healthcarecounsel.co.uk/