New inspections and standards
By now providers will be getting more familiar with the five key questions that CQC inspectors will be assessing services against, namely is the service:
- Safe? People should be protected from abuse and avoidable harm.
- Effective? People’s care, treatment and support should achieve good outcomes, promote a good quality of life and be evidence-based where possible.
- Caring? Staff should involve and treat people with compassion, kindness, dignity and respect.
- Responsive? Services should be organised so that they meet people’s needs.
- Well-led? The leadership, management and governance of the provider organisation should assure the delivery of high-quality person-centred care, support learning and innovation, and promote an open and fair culture.
The CQC outlined in the recent consultation on its Provider Handbooks its new system for inspecting and rating services and noted at the outset that it will, ‘identify, highlight and celebrate good practice,’ continuing, ‘we want to inspire providers to strive to be outstanding and continuously improve the care they provide. Our inspectors will work closely with registered providers, nominated individuals and registered managers to build open, two-way relationships where inspectors and providers feel able to contact each other to discuss matters as they arise.’
This all sounds positive, of course. Andrea Sutcliffe, the Chief Inspector for Social Care, taking a slightly starker tone, has been quoted as saying that the new system will be aimed to make it ‘blindingly clear’ to care home owners what standards they were expected to meet.
There’s currently a 139-page consultation document out which will focus the minds around 13 regulations contained within the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. These are:
- Person-centred care;
- Dignity and respect;
- Need for consent;
- Safe care and treatment;
- Safeguarding service users from abuse and improper treatment;
- Meeting nutritional and hydration needs;
- Premises and equipment;
- Receiving and acting on complaints;
- Good governance;
- Fit and proper persons employed;
- Duty of candour; and
- Fit and proper directors.
We can see from what’s happening in the NHS and from pilot inspections across all sectors that there will be a significant shake-up of how inspections are planned and managed. The essential elements for care providers will include the following stages:
- Intelligent monitoring – a tool will combine and analyse (a) people’s experience of care, (b) staff feedback about their experiences of aspects such as management, staffing, training and qualification, and (c) a range of information from statutory returns about deaths, injury or abuse, untoward incidents and previous CQC findings/action.
- Provider Information Returns – web-based forms which require providers to say what is in place within an establishment to satisfy in some detail the five key questions, as set out above.
- Inspections – with detailed approaches to inspection planning, site visits, judgements based upon the new Key Lines of Enquiry (KLOE) and reporting, including a final rating for each service.
From October 2014, the CQC will start publishing ratings from its pilot inspections under its new approach, although the inspections are currently applying the ‘old’ (ie present) standards rather than the new regulations.
There are to be four ratings which will indicate to the public, commissioner and other stakeholders whether a service is: ‘Outstanding’; ‘Good’; ‘Requires improvement’; or ‘Inadequate’.
The CQC has published its proposed rating scale which details how these will be determined (see table).
The starting point will be: is the service good? This is a qualitative shift from the current starting point which focuses merely on whether a service is compliant. For a service to be rated as ‘Outstanding’, the provider will have to demonstrate that it satisfies the elements associated with outstanding – currently as set out opposite. It is not clear how much the provider will have to contribute to getting a rating above ‘Good’, but every opportunity should be taken to maximise these qualities (for example within the Provider Information Return).
Ratings: making the judgement
The CQC will apply a weighting system so that the aggregated scores for the five key questions will have a direct bearing. These, ‘ratings principles’, are:
- If two or more of the key questions are rated ‘Inadequate’, then the overall aggregated rating will normally be ‘Inadequate’.
- If one of the key questions is rated ‘Inadequate’, then the overall rating will normally be ‘Requires improvement’.
- If two or more of the key questions are rated ‘Requires Improvement’, then the overall rating will normally be ‘Requires improvement’.
- At least two of the five key questions would normally need to be rated ‘Outstanding’ before an aggregated rating of ‘Outstanding’ can be awarded.
Furthermore, a service may not be capable of being rated as more than ‘Requires improvement’ in cases where a home lacks a registered manager and CQC is not satisfied with the steps taken to recruit one; where another condition of registration is not being met or where there has been a failure to submit statutory notifications.
The type of rating achieved by a service will have a significant impact upon the business of each service and for the provider.
Ratings will be linked to frequency of inspections
From October 2014, the frequency of inspections will be linked to ratings so that:
‘Inadequate’ means a service will be inspected within six months of the last inspection.
‘Requires improvement’ means it will be inspected within 12 months.
‘Good’ means it will be inspected within 18 months.
‘Outstanding’ means it will be inspected within 24 months.
Outside this timetable, there will be a proportion of random checks regardless of the home’s rating.
Ratings will be used for and against providers
The CQC’s interim regulatory impact assessment on these changes recognises the fact that ratings will be used to distinguish services from each other. Local authorities may apply a benchmark to which services will receive business. We saw this happen under the old star rating system, with some authorities also applying different funding bands to different ratings. Self-funders will also discern between services based upon rating.
There will be direct and indirect costs
Inspections will be longer and will impose additional resource burdens on providers due to the need to supply increasing information and facilitate staff and service user involvement. Providers with lower ratings will have a higher frequency of inspection and commensurate additional resource burden. If the CQC is to offer a re-inspection service (which is being contemplated) so that services can seek to demonstrate compliance to a higher standard, it is likely to charge for this.
Special measures and a tougher approach
From April 2015, failing homes rated as ‘Inadequate’ could be put into ‘special measures’, a system that has been used in schools over the years and more recently applied to several NHS hospitals. The CQC has said it anticipates about 100 care providers a year would be likely to go into special measures under the regime, giving them a fixed time to make improvements or close.
In an interview for the Telegraph newspaper in August 2014, David Prior, the CQC Chair said the regulator’s new inspection regime would take a tougher approach – even if that increased the risk that it could lose some cases in the courts to legal challenge. He is quoted as saying, ‘There is a distinction between what is legally right sometimes and what is best for the people in the home.
‘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.’
Having been battered by scandal in recent years, this is a clear sign that the CQC will not necessarily heed the law and is prepared to face the consequences in the interests of being seen to protect vulnerable members of the public. However, we have seen that misjudgements made by inspectors can have a catastrophic financial impact upon a care business from which it may never recover.
Ratings reviews and challenges
Crucial to any ratings system is the means by which providers can fairly challenge inspection findings and judgements. Without an effective review system, the commercial interests of providers could be seriously damaged.
Inspection findings will continue to be subject to the right to challenge, based on factual accuracy or the robustness of evidence of any potential breach of regulation. However, the proposed ratings review system will only allow a provider to request a review if they feel that the inspector did not properly follow the process for awarding the ratings. This will be dependent upon the quality and clarity of policies and procedures which describe how inspectors decide upon a rating. A provider will not be able to frame an appeal around a mere disagreement with the inspector’s judgement on compliance.
The system for reviews of ratings also seems hugely cumbersome and unwieldy, to the point where it is unlikely to provide swift and effective justice. The system is as follows: Senior CQC staff, not involved in the inspection, will compile a report and present this to a Rating Review Panel (RRP). The RRP, chaired by an independent reviewer from outside CQC, will consider the case and provide advice to the ultimate decision-maker – none other than CQC’s Chief Inspector or Chief Executive. The Chief Inspector or Chief Executive will then consider the recommendation of the RRP and make a final decision.
Once this has been exhausted, the only means of further challenge will be via the Ombudsman or the Courts (through Judicial Review).
Coming of age
The CQC has been through a huge process of review and it now rolling out what it hopes will be a clear ratings system for services. With ratings linked to frequency of inspections and the review system looking cumbersome, the sector will watch and see how the system works in practice from October.
Stuart Marchant is Partner at Bevan Brittan LLP. Stuart.Marchant@bevanbrittan.com