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Special measures for adult social care

As part of its new regulatory regime, late in 2014, the Care Quality Commission (CQC) issued its first consultation on how a special measures regime may work in the independent sector. The consultation set out CQC’s ‘special measures’ proposals for adult social care. Carlton Sadler explores concerns and potentially unlawful proposals contained within the consultation document.

Although the special measures document is only a consultation, it is concerning that the proposals within it are in some respects unclear and potentially unlawful.

What does a special measures regime mean?

Although CQC is keen to use the term special measures across all sectors, it acknowledges the practical effect of such measures will be very different from its use for NHS trusts and foundation trusts. For adult social care (and, no doubt for the independent healthcare sector too), being placed into special measures is basically a case of being given a ‘last chance to improve’ prior to closure of the service.

So what does CQC’s latest consultation say about how special measures will work for adult social care?

Entry point of special measures

CQC states that services will enter into special measures in one of two ways:

  • Immediately, if, on one of CQC’s new comprehensive inspections, the service has an overall ‘Inadequate’ rating. This will occur if the service receives an ‘Inadequate’ rating for two or more of the five key questions – Is the service: Safe? Effective? Caring? Responsive? Well-led?
  • After six months of continuing to have an ‘Inadequate’ rating for one of the five key questions – CQC states that it ‘will carry out a focused inspection after six months. If the provider still has an ‘Inadequate’ rating for any key question following this focused inspection, they will be placed into special measures.’

This second limb raises two important questions. Firstly, there seems to be a lack of clarity in CQC’s thinking around the timing of these follow-up, focused, inspections which could result in entry into special measures: the special measures consultation indicates that the focused inspection would have to be at least six months after the comprehensive inspection which resulted in an ‘Inadequate’ rating on one of the five key questions.

However, CQC’s provider handbooks for adult social care services state that focused inspections will normally be carried out ‘within three months of the date the provider said they would no longer be in breach of the relevant legal requirement.’ Obviously, on that basis, the focused inspection may not necessarily be more than six months after the initial comprehensive inspection at which the ‘Inadequate’ rating was given.

Secondly, CQC’s consultation states that special measures will be triggered if the provider ‘still has an inadequate rating for any key question’. Although CQC focused inspections do not look at all five key questions, it appears they can look at more than one. As such, it would appear (although it is not altogether clear) that a rating of ‘Inadequate’ against any of the five key questions at the time of the follow-up focused inspection will result in special measures, even if it was a different question which was rated as ‘Inadequate’ at the previous comprehensive inspection.

There is, therefore, a lack of clarity in the consultation as to what will trigger entry into special measures under this second limb.

During special measures

The theory behind special measures is to give providers a clear timeframe in which to improve the quality of their services. CQC states that ‘the process will enable the provider to implement a credible improvement plan within a fixed time period and avoid enforcement action by CQC.’ However, again, CQC’s proposals are not altogether clear as the consultation goes on to state ‘when a service is placed into special measures we may also take other enforcement action against the provider’.

As a general principle, however, it seems that the special measures process is meant to give providers a ‘last chance to improve’ before CQC takes action to close poor services. During this time, the provider will need to implement a credible improvement plan. In addition, the CQC consultation states that it will ‘signpost providers to potential improvement agency support (where they exist)’. It is unclear, however, precisely what forms of ‘improvement agency support’ CQC is referring to. In particular, who might these agencies be; what authority over a provider will they have; and what responsibilities will they have in terms of reporting lines to the provider, or to CQC?

Review of special measures

CQC’s proposals state that, after a service has been placed into special measures, a further comprehensive inspection will be carried out within six months. This is the review stage and, at that stage, CQC states that there are three possible options:

  • If sufficient improvements have been made so that the service no longer has any ‘Inadequate’ rating against any key question, the service will come out of special measures.
  • At the other extreme, if there is insufficient improvement, CQC states that it will proceed to the end point of special measures, i.e. closure of the service.
  • As a middle ground, if there has been some, but not enough, improvement, services may be given a further six months to improve before yet another comprehensive inspection is carried out and a decision made whether to take the service out of special measures or proceed to closure.

However, in this ‘middle ground’ scenario, it appears to be envisaged that, even though it will schedule a further comprehensive inspection, it will still initiate the legal process of closure by issuing a Notice of Proposal to cancel registration. The flow diagram within the consultation makes it clear that, in such a situation, CQC would not make a decision on whether to adopt that proposal, i.e. would not serve a formal Notice of Decision to cancel registration, until the outcome of the further comprehensive review inspection was known. It appears, therefore, that in this ‘middle ground’ scenario, CQC would be serving a Notice of Proposal to cancel registration in a situation where that proposal is dependent on the findings of the next comprehensive inspection. Obviously, at the time the Notice of Proposal is issued, neither CQC nor the provider would know the outcome of the forthcoming inspection and this would seriously impact upon the provider’s statutory right to make representations against the cancellation proposal. It is questionable, therefore, whether initiating enforcement, by serving a Notice of Proposal on such a contingent basis, would be a lawful step for CQC to take.

End point of special measures

It is clear that the proposed end point of special measures, for services which do not make sufficient improvements, is for CQC to close the service. However, even here, the language CQC uses in its consultation proposal is unclear and unhelpful. CQC talks about the end point of special measures being ‘cancellation’ of registration. However, for providers operating from more than one site, it is presumed that CQC will take action by removing the relevant location from the provider’s registration(s), rather than cancelling the registration(s) altogether. Again, however, the lack of clarity in the CQC consultation upon this is unhelpful.

Liaison with commissioners

There is a further lack of clarity in CQC’s proposals with regard to the timing of its liaison with commissioners about any services placed into special measures. In the introduction to the consultation, CQC talks about engaging closely with commissioners, to enable continuity planning for services, ‘where, following the start of special measures, cancellation of registration is considered’. This would suggest that such engagement with commissioners will only take place where CQC has not noted sufficient improvement at the review stage of special measures. However, at page three of the consultation, CQC states ‘when a service is placed into special measures we would liaise with the local authority and the clinical commissioning group so that they can begin planning for service continuity.’

There is clearly a concern that such liaison between CQC and commissioners could jeopardise further placements at the service and, therefore, render struggling services even less viable. There is also a real risk that CQC and commissioners will pre-judge the outcome for expedience rather than give the provider a genuine chance to improve. It is, therefore, imperative that CQC is clear as to precisely when such engagement with commissioners will take place and as to what commissioners are told about the status and impact of the special measures regime on the service. The lack of clarity in the consultation document regarding these matters does little to provide reassurance as to how and when such issues will be discussed with commissioners as and when the regime goes live.

Clarity and fairness

As set out, there are real concerns regarding the lack of clarity and, in some cases, the lawfulness of the proposals within CQC’s special measures regime for adult social care. By the time you are reading this the consultation will have closed and we will need to see how CQC responds to that process in order to inject more clarity and fairness. The CQC expects to publish final special measures policy for adult social care in March 2015.

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Carlton Sadler is Senior Associate at Bevan Brittan LLP.

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