Tag Archive for: CQC

Healthcare Counsel’s Weekly Zoom

The first session of Healthcare Counsel’s Weekly Zoom took place on Wednesday.  The sessions provide an open space for providers to share their experience and solutions about Covid.  They are held under the Chatham House Rule, so anyone on the call can use the information shared, but must not reveal the identity or affiliation of attendees.  On at least one occasion, holding the meeting under the Rule meant that a contributor shared information that they may otherwise have been cautious about disclosing.

The 45-minute session covered common current issues for providers including:

  1. HSE and CQC notifications
  2. Difficulties and variation in testing, including high numbers of inconclusive results
  3. Measures providers are taking to mitigate regulatory risks, and risks of claims
  4. How to manage staff who are nervous about returning to work
  5. Workforce issues including how to use agency staff safely
  6. PPE
  7. Dates of peaks

The feedback I received after the meeting was that participants found it both helpful and reassuring.   For example, in relation to the staff members who are too worried about Covid to return to work, that is a completely novel issue for providers.  Talking matters through with other providers facing the same issues can be invaluable.

There was also an acknowledgment of how difficult a period it has been.  One participant ended the meeting with an admirably clear message:   Stay Safe – Drink Gin.  I think everyone can understand where they were coming from.

From this Wednesday, the weekly Zooms will be at 10.30, and are scheduled for 45 minutes.  This week’s session will include discussion around training during Covid, and CQC’s Emergency Support Framework.  Please email me for the Zoom details:  [email protected].  Please also feel free to let me know if there are any ptopics you’d like included in the discussion, as well as any legal issues you’d like me to cover.

 

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Latest Registering the Right Support Appeal

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Another appeal against a CQC decision to refuse an increase in service user numbers in a LD home was dismissed last week.  As ever, CQC made the decision applying its Registering the Right Support guidance.

There has still  been only one successful appeal so it’s an uphill struggle to win such cases.

In this case, the Tribunal said: “The central and fatal omission … was the lack of objective evidence in support of the proposed model of care as the guidance, rightly in our view, demands if larger settings are to show they are as capable of delivering best practice as smaller settings”.

The Tribunal was also impressed by emails of support  from commissioners but regretted not being able to question them about their views.  No doubt many commissioners would be reluctant to put their heads above the parapet to that extent.  However, in the absence of live evidence, it seems the Tribunal will only attach limited weight to commissioners’ views.

The case  highlights that providers who have obtained expert evidence in support of their model of care and who are able to persuade commissioners to give evidence, stand the best chance of success.   These are points I made in my earlier analysis of Tribunal decisions in this area – see here for more detail on how providers can maximise their prospects of success when applying for an increase in service user number.

The full decision is available here.

 

 

 

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How long does it take to be Good?

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How long do you have to be Good before you are rated as such?  The question arises from a common frustration in the sector.  A provider may temporarily drop the ball in relation to a service that results in an Inadequate rating.  The provider accepts the rating and does everything necessary to raise standards.  Often, that will include a change of manager and tightening of quality monitoring systems.  CQC returns within 6 months and recognises the improvement.  The content of the report couldn’t be more glowing.  However, CQC rates the service as Requires Improvement on the basis that not enough time has elapsed since the last inspection for the home to demonstrate ‘consistency’.  The provider argues that the content of the report plainly supports a ‘Good’ rating.  Who is right?

First, it is important to recall that there are two separate legal frameworks relevant to inspections: the regulations and the KLOES.  The reason for that was a political decision when ratings were re-introduced that the regulations should represent the minimum standards and providers should not be rated highly just for meeting minimum expectations.

Under the relevant legislation, the criteria for ratings are not the regulations but rather ‘whatever indicators of quality the Commission devises’.

Those indicators are set out in the KLOEs and rating characteristics.

Consistency is referenced repeatedly in the rating characteristics.  For example, the general descriptor of Requires Improvement for Safe, includes ‘The service has an inconsistent approach that sometimes puts people’s safety, health or wellbeing at risk’.

How should CQC assesses consistency?  CQC has helpful guidance on this point in its internal document Inspection Guidance – Judgments and Ratings.  The guidance is intended to help assess whether a location is achieving sustained and continuous improvement following a breach.  It sets out the following prompts to assist in that task:

  • Does the provider understand what went wrong and why? What is the evidence for this and how is this corroborated?
  • What has the provider learnt from the breach evidence?
  • How has this learning been put into practice?
  • Has the breach been resolved, and is the legal requirement now met? How has quality improved?
  • What has the provider done to put things right? Have relevant systems and processes, equipment or training been introduced which reduce or eliminate the risk of the breach happening again?
  • Is there ongoing support available for staff/managers to help prevent further issues?
  • Can the provider demonstrate that the improvements they have made are sustainable? What is the evidence to support this? What plans, checks or audits are in place to check that the changes made will continue to be effective in the future?
  • What do people using the service say about the improvements? What impact have the improvements had on them?

Those prompts are not objectionable, and indeed are sensible, providing they are used to judge relevant prompts rather than being used as a substitute.

Significantly, there is no reference in them to a minimum period of time before sustained and continuous improvement can be achieved.  That is appropriate.  Sometimes CQC will reinspect sooner than others following an inadequate inspection.  The key issue is what CQC finds when it inspects.  If the answer to the prompts are favourable to the provider, it should be rated accordingly.  The previous breaches will be covered in the previous reports that will, of course, remain available to anyone who wishes to research the compliance history of the service.

In its annual report following the re-introduction of ratings, CQC wrote that the ratings would give the public a better and more transparent understanding of the quality of different services, while also encouraging providers to improve.   Those objectives are not fully realised if ratings are based on poor quality which has since been remedied.    People encountering a ‘requires improvement’ rating will categorise the service exactly as such: that it requires improvement.  CQC would, unfairly and inaccurately, be placing it into a category with other services that truly do need to improve.

Providers facing this issue should draw it to CQC’s attention in the factual accuracy process.  If that does not resolve the matter, it can be raised through the rating review process as it is clearly an example of CQC not following its own process.

Please contact me if you need further information on this or any other regulatory issues or inquests:

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/

 

 

 

 

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When Should CQC Withdraw Inspection Reports?

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On Tuesday, CQC accepted the recommendations in David Noble’s report about concerns raised in relation to the regulation of Whorlton Hall.   Recommendation 4 concerns legal and policy advice about non-publication of inspection reports.

Coincidentally, CQC also announced this week that duplicate material had been discovered in 78 inspection reports.  Two experts by experience, and one specialist advisor, had copied the same content into their reports presumably to save time.  In respect of 40 of the inspections, CQC republished the reports with the material removed.  However, CQC withdrew the publication of the remaining 38 reports where the material had been written by a specialist advisor.

Mr Noble, a lawyer himself, recognised that there will be exceptional cases where non-publication (or delayed publication) would be justified.

Is that right and if so, what would constitute ‘exceptional circumstances’?

To answer these questions, it is useful to ask how a court would approach the question of withdrawing inspection reports.

A court would take a different approach to delaying publication pending a final hearing into a challenge about the inspection, to making a final decision about an inspection report after trial.  CQC’s guidance should reflect that distinction.

 

Delayed publication

By a further coincidence, the High Court yesterday handed down judgment in a case concerning an application for an interim injunction to prevent publication of an Ofsted report[1].   ­­Ofsted inspected a state school and rated it ‘inadequate’.  The governing body profoundly disagreed with the report and brought judicial review proceedings challenging the decision.  It also applied for an injunction not to publish the report until the trial was heard.

The judge comprehensively reviewed the authorities in the area.  The duty to publish is a significant consideration.    There is a public interest in inspection reports being published to which courts attach great weight.  Accordingly, the court will only consider an interim injunction in extreme cases.    Phrases used in the case law include ‘exceptional circumstances’ (as used by Mr Noble), ‘most compelling reasons’ and ‘pressing grounds’.  Examples include:

  • The public body had engaged in a vendetta
  • Deliberate desire to inflict damage on the reputation of the person criticised
  • Fraud
  • Corruption
  • Report is manifestly untrue or riddled with error

This is not an exhaustive list and decision makers must keep an open mind about what might exceptional.  As the allegations will not yet have been investigated, the test to apply is whether there is a strong prima facie (I would used the phrase ‘strong appearance’ in lay guidance) that an exceptional factor applies.

Relevance of CQC Quality Assurance

In this week’s case, the court was impressed with Ofsted’s quality assurance systems in relation to inspection reports.  That strongly influenced its judgment that a strong arguable case had not been made out that the exceptional circumstances applied.  CQC’s quality assurance systems, in contrast, were also the subject of recommendations by Mr Noble.  This week’s revelation about the 70 flawed reports shows that CQC’s quality assurance system has not been working for some time.  Furthermore, as I’ve previously argued, CQC remains in breach of a High Court judgment requiring it to consider providers’ challenges to CQC’s responses to factual accuracy corrections[2].  Complying with that requirement, rather than CQC managers cursorily reviewing every draft inspection report, would be a useful first step.   Until CQC can show that its quality assurance systems have improved, CQC should recognise that it is easier for providers to cross the threshold of a strong prima facie case.

Publication pending investigation

If CQC is not satisfied that there is a strong appearance that exceptional circumstances apply, it can lawfully publish the report pending an investigation into any matters raised.  As a matter of fairness, I would argue that CQC should also publish that the report is subject to an investigation and invite the provider, if it wishes, to summarise its concerns.  CQC should, of course, still go on to investigate the concerns.

Investigation and Final Decision

The requirement for ‘exceptional circumstances’ applies to the question of whether a court should withhold publication pending trial.   When it comes to a final decision, the court will apply conventional public law grounds which include:

  1. Irrationality – making judgments are bizarre or perverse.
  2. Failing to take into account relevant considerations.
  3. Taking into account irrelevant considerations.
  4. Failing to follow CQC’s internal guidance without good reason.
  5. Bias.
  6. Bad faith.
  7. Unfairness – for example by not giving the provider sufficient opportunity to state its position, such as an inadequate response to factual corrections.

The court will give CQC’s view a great deal of deference because it will regard it as being an expert regulator with trained staff, tasked with undertaking an important function in protecting vulnerable people.

If the grounds are made out, the court will then go on decide whether, in its discretion, to grant a remedy, for example a mandatory order requiring CQC to withdraw the report.   Given the high hurdle that the claimant would have cleared to reach this stage (especially deference to CQC), courts are likely to provide some remedy.

CQC is better placed than a court to investigate breaches of public law and so should do so in a fair and open manner  When public law grounds are made out, CQC should pull the report unless the report is capable of remedy, for example where some offending material can be withdraw without affecting the balance of the report, as CQC appeared to have found in respect of the reports containing duplicated expert by experience material.

In summary:

  1. CQC should withdraw a report pending investigation when there is a strong appearance that exceptional circumstances apply.
  2. If CQC publishes a report that is subject of a complaint, it should publish that fact, and a summary of the provider’s complaint if the provider wishes.
  3. CQC should investigate all complaints about inspections.
  4. CQC should apply standard public law principles to its final decision regarding publication.
  5. If it is in breach of public law duties, CQC should withdraw the report unless the breach can be remedied in some other way.

Please get in touch if you need advice about your CQC report or help setting out your complaint to CQC.

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: [email protected]

[1] R (on the application of the Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWHC 69 (Admin)

[2] R (on the application of Ssp Health Ltd) v Care Quality Commission (2016)

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Guide to ……….Notices of Proposal and Appeals

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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.

 

For more information about our CQC services, click here.

 

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/

 

 

 

 

 

 

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