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Key developments in adult social care regulation in 2019

There’s been much change for the Care Quality Commission (CQC) this year. Providers have had to keep up with new or different processes and there’s still more to come. Here, Neil Grant of Gordons Partnership picks apart the biggest changes both for providers and the regulator, and shares what we can expect to see in 2020.

The most memorable fact about the Care Quality Commission (CQC) this year is that it celebrated its 10th birthday in April. This is not to be taken for granted, given that the Commission for Social Care Inspection and the Healthcare Commission only lasted four years, while the original National Care Standards Commission lasted only two. It is all the more remarkable given that, in its first four years, CQC was beset with problems.

Sir David Behan left the organisation in 2018, and Andrea Sutcliffe followed shortly after. So how is the organisation doing in their absence? What has CQC introduced in 2019 that is different as far as adult social care regulation is concerned?

Where is CQC going?

I do not get a strong sense of direction from senior management at CQC and this feeling appears to be shared by some of CQC’s own staff.

In this year’s CQC People Survey, the results of which came before the CQC Board in October, only 35% of staff agreed that the Executive Team provide clear direction and leadership, compared to 45% in 2018. Although 87% were aware how to raise an issue, only 53% were confident they would be listened to.

Finally, 41% disagreed that they were able to contribute views to decisions that affect them, with only 34% responding positively. The note to the Board states, ‘This suggests we need to create more opportunities for dialogue about decisions made.’

Wider influences and developments

Much of what has defined 2019 has been outside of the control of CQC. There is Brexit, the continuing funding shortfalls in social care and a major recruitment crisis across the sector.
In terms of new law, the most significant development for CQC and the sector generally has been the passage of the Mental Capacity (Amendment) Act 2019, which received Royal Assent on 16th May 2019 and defines the framework for the Liberty Protection Safeguards. These are set to replace the Deprivation of Liberty Safeguards (DoLS), with October 2020 being the anticipated date when they will come into force.

To say the Bill had a turbulent passage through Parliament is an understatement, and a coalition of charities and trade associations combined to oppose the proposed legislation.
Government was forced to make several concessions. Most notably, the original proposal to have registered managers undertake assessments of the cared-for person was withdrawn due to concerns about conflicts of interest. Now, registered managers will be limited to having a co-ordinating role in relation to assessments and then only if (i) there is no conflict of interest, as set out in regulations, and (ii) the responsible body (i.e. the relevant local authority) has decided it is reasonable for the registered manager to undertake this function (as well as consulting with interested parties about the proposed deprivation of liberty). In the end, the Bill went through and we will live with the consequences in the years to come, though we can expect plenty of legal challenges in the first few years.

What is truly exceptional about the Liberty Protection Safeguards is that they are not setting-specific, unlike DoLS which only apply to care homes and hospitals. Quite how they will work remains to be seen, with a draft Code of Practice and draft Regulations coming out between December and February (I am writing this at the end of October). CQC will have the task of monitoring them in England which will be interesting given that the regulator has no automatic right of entry to people’s private homes.

Regulatory changes

New inspection reports

At the beginning of the year, a new inspection report template was introduced: shorter in length with headings linked to the Key Lines of Enquiry. Particulars in reports are set out in bullet point form, supposedly representing a summary of the best available evidence. The reports are easier for the public to digest and should lead to quicker turnaround times from the date of inspection to publication. The downside for providers is that criticisms in reports are often vague or insufficiently particularised. As the reports do not contain all the evidence CQC relies on, providers are disadvantaged. This is compounded by the fact that CQC will not share the inspection notes, even though these constitute the underlying evidence.

As CQC’s website confirms, ‘We will not release the inspector’s full notes from an inspection. We will consider requests for extracts of notes about a specific issue where this is reasonably necessary to enable you to understand the basis for a statement in the draft report that you believe is factually inaccurate (that is, if the basis of our statement is not clear from the draft report).’

We therefore have a situation where not all the alleged negative findings (or positive ones) are shared with providers. Quite how this fulfils CQC’s public protection and improvement duties is beyond me. What CQC should do is supply each provider with a separate document containing all the evidence. It is all in the inspection record anyway. Full disclosure is all the more important when CQC alleges a breach or breaches of regulation and includes a Requirement Notice in the draft report.

The telephone call

Roughly two days after the registered person receives the draft report, they should get a call from the inspector asking if they intend making factual accuracy comments. If they don’t, the report can be fast-tracked to publication. It is an opportunity for the registered person to ask for clarification about findings. As CQC advises its inspectors in its Report Writing Guidance (July 2019), ‘This is to talk through each section of the report and discuss the evidence used to arrive at our judgment. This conversation is optional and registered persons can choose not to have this call.’

The Guidance goes on to state, ‘Where the provider wants to formally challenge the accuracy of the evidence or asks for additional or omitted evidence to be considered they must be referred to the factual accuracy process. This informal conversation is not to discuss this.’

I am not sure how well this new process is working, given a number of my clients never received this telephone call. I would insist on the call happening as it is your opportunity to ask for clarification on any parts of the report that you are not clear about. It is a welcome addition to provider engagement and should always be taken up if you are unclear about aspects of the draft report. Indeed, I would advise providers to submit questions in advance of the call to help the inspector prepare for the conversation.

Factual accuracy comments

Around April, CQC introduced changes to the factual accuracy process, including a new factual accuracy check form. The major initial concern was that CQC was attempting to introduce a character limit under each point. This got a negative response from the provider sector which was concerned about restrictions to their ability to challenge CQC. By June, CQC had backed down and reset the form to allow for unlimited responses under each point.

CQC has made it clear in its guidance that providers should ensure any points they raise in the form are clear and concise, and that they are linked to any supporting evidence that is supplied.

What I would say to providers is that they should not feel restricted in terms of what they write, given that some issues will need a detailed and lengthy commentary, cross-referenced to supporting documentation as necessary.

Provider Information Return

In August, CQC issued a new Provider Information Return (PIR). While some of the questions were different, the bigger change was the severance of the link between PIRs and inspections. As CQC noted in its Executive Team Report delivered to the September Board Meeting, ‘In August we changed the ASC [Adult Social Care] Provider Information Return (PIR) from a pre-inspection information request to an annual one. This is a major change in how we collect information from ASC providers.

Over time it will allow us to use this information to determine whether we need to inspect, rather than it being a tool to support planning of an inspection already scheduled. Removing the link to the inspection planning will not only help us to monitor more effectively, it should also make it easier for providers to prepare and complete the information return as they will know when they will need to provide this to us well in advance.’

What’s to come?

Perhaps the biggest challenge for CQC is how it is going to regulate new technology and innovation in care over the years to come. There will be a need to recruit inspectors with new competencies to be able to judge those services that truly embrace transformative ways of working.

There is perhaps a glimpse as to how this might play out in the February Executive Team Report to the CQC Board, ‘In September last year we were awarded £500,000 from the Department for Business Energy and Industrial Strategy (BEIS)’s Regulators’ Pioneer Fund to explore how we can work with providers to encourage good models of innovation. The set-up of the team and programme is now underway. It will look at what Good looks like in how organisations are implementing and developing innovative or new technologies (including how organisations manage risks). It will also explore options for what ‘regulatory sandboxing’ could look like within CQC’s purpose and statutory functions, to engage earlier with providers deploying innovative approaches in a collaborative and controlled safe space. The programme will include both research and options development followed by testing over the next year, before potential implementation.’

Looking forward to 2020, I very much hope that CQC will deliver on its commitment to regulate technology and innovation in care effectively with a view to promoting best practice, raising standards of care and getting the most from the finite resources available to the sector.

Neil Grant is Partner at Gordons Partnership LLP. Email: neil@gordonsols.co.uk

What has been your experience of the changes from CQC this year? What impact do you think the change to Liberty Protection Safeguards will have for your business? Let us know by leaving feedback on this article.

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