I am concerned that there appears to be a growing tendency within CQC to change the way it registers and regulates the sector by introducing new guidance or revising existing guidance without due regard to the statutory framework or the need for proper consultation.
The risk of this is that CQC comes to make up its own rules without proper accountability, either by way of parliamentary scrutiny or public consultation, potentially leading to arbitrary decision-making.
The new ratings limiter
CQC has a number of rules that limit the rating that can apply at overall provider level or at key question level to adult social care services.
The original overall provider level rating limiter, linked to compliance, came out in October 2014 when ratings were first introduced for adult social care. It stated that, ‘the overall rating for a service would not normally be better than ‘requires improvement’ if enforcement action is being taken.’
In January 2017, the internal CQC guidance for inspection staff was strengthened with the inclusion of a new limiter, which stated, ‘In addition, the overall rating of a service cannot normally be better than ‘requires improvement’ if there is a breach of regulations’ and this is included in the latest internal CQC guidance document, Inspection guidance – judgements and ratings. Inspectors are required to follow CQC’s inspection methodology in the interests of consistency.
This new limiter was never the subject of any formal consultation exercise and it is only being applied to adult social care services, not the NHS or GP practices.
However, the main problem is that this ratings limiter appears to be being applied in a blunt and arbitrary manner, with no regard to proportionality or professional judgement.
As an example, CQC inspected a care home and awarded ‘good’ ratings for safe, effective, caring and responsive. The inspection report commented that the service remained well-led but awarded ‘requires improvement’ for that key question because of a failure to display the previous rating on the provider’s website. The provider had, however, displayed the old rating in the entrance to the home, so the omission was not willful but still amounted to a breach of regulations.
Ordinarily, four ‘goods’ and a ‘requires improvement’ would generate an overall rating of ‘good’, but here, because there was a breach of regulation, the overall rating was downgraded to ‘requires improvement’. This was a simple error, capable of easy and swift resolution. It was completely disproportionate and unreasonable to describe this highly-successful service as requiring improvement and the inspector should have been allowed to exercise professional judgement rather than be bound by a strict rule of this nature.
The other area causing services that otherwise would be ‘good’ overall to be downgraded is in relation to failures to notify CQC of incidents or authorisations of Deprivations of Liberty. A service may be ‘good’ across four key questions, but if a couple of notifications are not sent to CQC, it will be rated as overall requires improvement.
The above points are in no way intended to minimise the importance of displaying ratings or making the necessary notifications to CQC, but are made to highlight the importance of putting such matters in context.
It would be better for CQC to abandon this ratings limiter and allow inspectors to exercise professional judgment. It is also unfair to apply it to adult social care but not the NHS or GP practices.
Ironically, although CQC adopted the Ofsted ratings model, the latter applies far greater flexibility in how it awards good ratings. Ofsted may identify compliance issues but still rate a service as ‘good’ if, overall, it is performing to that standard.
This issue is all the more important given that CQC is going to be increasing its focus on services that are repeatedly rated ‘requires improvement’.
When taking enforcement action against NHS hospitals, CQC has often had to regulate using conditions of registration or warning notices, as it is not feasible to deploy cancellation or suspension powers on them. However, regulation via ‘compliance’ or ‘positive’ conditions is now increasingly being used in the adult social care arena.
An example of a compliance condition that has become quite common is one that requires the registered person to undertake monthly care planning reviews on all the service users, with a monthly report to CQC on the outcomes of the reviews and any changes made to care plans. Such a condition can be unduly onerous on a service and is likely to take the manager off the floor to carry out this work, given the obvious fear that a breach of a condition, without reasonable excuse, is a statutory offence with an unlimited fine. CQC will say that conditions should not performance-manage a provider or manager, so why are conditions being deployed in this way, in the first place?
I have argued successfully that, on legal and factual grounds, such conditions should not be imposed and that a more proportionate approach could be available. For example, CQC could ask the provider to voluntarily supply reasonable amounts of information or it can request information under sections 64 and 65 of the Health and Social Care Act 2008.
A further weakness in CQC’s use of compliance conditions is that they are taken from CQC’s ‘Conditions Bank’ so standard wording is being used which may not cover the situation in a particular service. Furthermore, there can be issues about the clarity of compliance conditions and whether they are reasonably achievable. CQC says that conditions must not include reference to the date when the condition will take effect or the length of time for which it will continue to have effect. This calls into question the reasonableness of the condition. Its duration should be clear; it should not be open-ended.
Definition of a provider
Finally, there is one major change in the offing. Currently, CQC regulates organisations that directly provide the service to the client. However, it has indicated that it wants to register and inspect any related organisations that may direct and/or control systems of care, such as parent companies and care management companies. CQC says it doesn’t need a change to legislation to register these associated organisations – it is enough for it to apply a new interpretation to ‘carrying on a regulated activity’ and widen the scope of provider registration.
As I set out in my article, Cats, dogs and CQC registration, I believe that if CQC wants to widen the definition of a provider, it should lobby the Government with clear reasons as to why it is necessary, as such an important change should be introduced via legislation. After all, CQC is not a lawmaker.
There is a hint that CQC is starting to listen to the sector on this particular issue. The latest I have heard is that CQC is planning to go back to first principles as part of a broader piece of work looking at future provider assessment. It is hoped that that there will be a far greater degree of engagement with the sector on any future proposals than has so far been the case and that it will seek legislative change if it wishes to widen the scope of registration.
Operating within obligations
CQC carries out an essential public function and much of its work is of a commendable standard. However, it needs to ensure that it operates in accordance with its statutory duties and obligations at all times. Ratings decisions should be reasonable and proportionate, and CQC needs to move away from applying rules in a blanket fashion without regard to the facts and circumstances of the case.
My main fear is that it will lose sight of the importance of getting the basics right, namely registration, inspection, compliance and enforcement.
Only time will tell, and I wish the new Chief Executive, Ian Trenholm, every success in his stewardship of the inspectorate.
Neil Grant is Partner at Gordons Partnership LLP. Email: firstname.lastname@example.org
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