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Overcoming challenges: Avoiding enforcement action

Before COVID-19 struck, the Care Quality Commission (CQC) had been increasing the use of its powers to take civil and criminal action against providers who weren’t meeting standards. As things start to resume some sense of normality, we are looking at what happens when these actions are unjustified. Alison Wood from Lester Aldridge shares the best ways to avoid enforcement action and how to handle it if it happens.

Lawyers are often contacted when things go wrong, when enforcement action has already been taken by CQC or when a provider is facing potentially serious consequences, such as criminal prosecution or losing their registration.

However, enforcement action can often be avoided or managed more effectively when providers are proactive and seek early advice.

It starts with the inspection

Enforcement action will often follow a poor inspection, which may have been routine or prompted by safeguarding concerns, complaints or whistleblowers. Where an inspection has been prompted by such a concern, the inspector may already have a negative preconception of the service, which can be difficult to change, despite providers’ best efforts. We have seen situations where services have been rated Good only to have their rating downgraded to Inadequate in a matter of months because of such an issue.

Regardless of the reason for an inspection, it is imperative that the inspector has a good first impression. If the inspection has been prompted by a concern, it is usually best to tackle this up-front and head-on with the inspector to ensure that any misunderstandings are discussed and rectified. Whilst some inspectors are more willing to engage than others, it is important that your voice is heard and, if you feel that you haven’t been treated fairly, you should document this at the time in case you wish to take action at a later stage.

There are many ways to get the most out of an inspection, such as handing the inspector evidence you want them to see, ensuring staff are well prepared, and making the most of the feedback session. However, if your inspector is not willing to engage with you or if you are concerned about the likely outcome, it is worth acting sooner rather than later.

Challenge, challenge, challenge

If your inspection results in a negative report which you think is unfair or inaccurate, you do have options – and remember CQC can get it wrong. We have dealt with cases where CQC has got it so wrong that a draft inspection report has changed from a rating of Inadequate to a rating of Good in the published report. Such cases are not as unusual as one might think or hope.

Had these providers accepted their draft reports, enforcement action may well have followed, along with all the other concerns that come with an Inadequate rating, such as funding problems and issues with commissioners.

If you find yourself with an inaccurate or unfair draft inspection report, one of the most important things to do is to prepare a thorough factual accuracy challenge. This involves spending time going through the report properly to identify inaccuracies, points which are unfair, or areas where CQC has simply misunderstood an issue. It is not unheard of for inspectors to include a quote that has been taken out of context, to make an incorrect assumption, or to state a point that is plainly wrong. The factual accuracy check is an opportunity for you to find these errors and highlight them, evidencing why they are incorrect.

Preparing a really strong factual accuracy challenge will take a significant amount of time and it is important that any inaccurate point is supported by clear evidence. Gathering such evidence can be time-consuming but the importance of the task should not be underestimated.

Saying this, providers do not have the luxury of time here. There is a strict limit of ten working days from receipt of the draft report for providers to challenge its accuracy. In contrast, CQC does not impose any timescale on itself to consider a provider’s challenge and we have known CQC to take a number of months to produce a final report following a factual accuracy challenge.

The factual accuracy process is also the best opportunity for providers to challenge the ratings they have been awarded in each key question and ensure that positive information is included in the report which might otherwise have been excluded.

Whilst providers do also have the opportunity to challenge ratings after publication of the report, such challenges are rarely successful and, given the limited scope for challenge and strict limit of 500 words, this is perhaps not surprising. According to CQC’s guidance, the only grounds for requesting a ratings review are that the inspector ‘did not follow the process for making ratings decisions and aggregating them’. Reviews also cannot be requested on the basis that you ‘disagree with the judgments made by CQC’.

And CQC figures show that ratings reviews are often not the most effective way to challenge a rating. Up to 30th June 2019, of the 683 applications for ratings reviews that had been received, only 18 resulted in an increase to the provider’s overall rating. The majority were either closed because there were no grounds for a review or resulted in no change to the ratings.

Taking further action

It may or may not come as a surprise that, in our experience, CQC does not always act proportionately, reasonably or lawfully. Sometimes, despite a clear factual accuracy challenge, CQC does not amend an inaccurate report and may proceed with inappropriate or unjustified enforcement action. When this is the case, it is important to take action without delay and to seek specialist advice.

As a public body, CQC is open to legal challenge but there are also non-legal challenges that can be made to ensure you are treated fairly. These include following CQC’s complaints process or escalating your complaint to the Parliamentary Health Service Ombudsman if it has not been dealt with in a way that you would expect.

If enforcement action is taken by CQC, it is vital to deal with the situation sooner rather than later. Enforcement action can take many forms, from a simple warning notice to an immediate cancellation of registration, but all will have an impact on your service and your business as a whole. Such actions, whether justified or not, can affect staff morale and retention and can prompt issues with commissioners, resulting in significant financial consequences. Responding to enforcement action is often much simpler if a well-drafted factual accuracy challenge has already been produced, and it can be extremely useful if the matter is pursued.

In relation to serious enforcement action, such as a proposal by CQC to cancel registration, following the appeals process will invariably be necessary if a provider wishes to keep its business and will often result in a successful outcome if advice is followed and improvements are made. When appeals are lodged with the Care Standards Tribunal in response to enforcement action by CQC, the Tribunal will look at the compliance of a service as at the date of the hearing to decide whether or not it should be able to continue to operate and this can therefore afford a provider invaluable time to address the concerns that have been raised.

Protecting your business

Recent years have seen an increase in enforcement action being taken by CQC with it wishing to be seen as an effective regulator. This rise in the use of its civil and criminal powers has been a conscious reaction to public criticism and abuse scandals.

Whilst the effectiveness (or otherwise) of such a strategy can be argued, too often we are seeing good providers ending up on the receiving end of unjustified enforcement action that has either been based on inaccurate ‘facts’ or an overreaction to a situation, which may well have been entirely out of the provider’s control.

Whatever the reason for the enforcement action, routes for challenge are always available and, in most situations, they should be used to protect your business as far as possible. Whilst, where concerns arise, a provider’s focus should be on improvement, in many situations, it will also be appropriate to follow routes for challenge, if only to alert CQC to the improvements that are being made.

Whilst it is not always possible to avoid enforcement action, and in some cases it is entirely justified, the most important point is how enforcement action is managed. Where enforcement action has been taken and is justified, we often find that CQC is willing to work collaboratively with us and the provider if insight is shown and a clear plan of action is put in place to address the identified concern(s). In these situations, it is rarely the best approach to be combative or adversarial, but each case will depend on its own facts.

In short, engagement with the process and obtaining advice at the very earliest opportunity will allow a provider the best chance of succeeding and achieving a positive result in whatever form this may take.

COVID-19

Whilst CQC paused routine inspections due to coronavirus, we understand that it has scheduled a number of inspections where there are concerns over risk. In addition, CQC is undertaking a thematic review of 300 services over the coming months, focusing on infection prevention and control.

If CQC considers it necessary to take enforcement action, it will do so and providers need to be mindful about the risk of enforcement action during this difficult time. We hope that CQC will take a reasonable approach, but we strongly advise providers to be prepared to deal with CQC and ensure detailed records are kept as well as risk assessing and clearly documenting any difficult decisions.


Alison Wood is an Associate at Lester Aldridge. Email: Alison.Wood@LA-Law.com Twitter: @LACareTeam

Have you challenged a CQC inspection report? What are your concerns about the regulator restarting inspections? Let us know by commenting on this article below, where you can also share feedback.

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