December 8, 2019 Legal

A regulator which gets it wrong is worse than no regulator at all

By Maddi Gaunt at Ridouts
The House of Commons Joint Committee on Human Rights published a report on 1 November 2019 which is highly critical of the Care Quality Commission (“CQC”) and the current state of health and social care services for children with learning difficulties and autism.
The report proposes a number of recommendations to improve what it sees as shortfalls in the CQC’s inspection process, which it hopes will be adopted by the ongoing Whorlton Hall enquiry.
Whether or not these will come to anything remains to be seen and significant reform is unlikely to happen immediately. However, it is fair to say that there is consensus that reform is needed.
The CQC will need to react appropriately but there is a risk that the recommendations in the current form, if adopted, would just make things worse. We need a regulator who gets it right.
More inspections at evening and weekends
A safe, effective, caring, responsive and well-led provider should, in theory, have no more to worry about when an inspection takes place late at night or on the weekend, than when one takes place during a Monday morning.
Nevertheless, the inspection process is already a stressful and disruptive experience for providers and they will be wary of the prospect of more inspections taking place at times where a) service users could be disturbed more by the inspection process; b) staffing levels are lowest; c) there are less visitors, family members or other third parties around to offer their views.
Additionally, having less staff to corroborate what took place during inspections from a service providers’ perspective puts CQC transparency at risk. This is particularly concerning alongside the CQC’s new policy of refusing to provide full inspection records to providers.
Changes to rating criteria
The report has recommended that the CQC rating of “good” should no longer be allowed when a provider has been found to be less than good in any one of the 5 key lines of enquiry (“KLOE”).
The present guidance allows the CQC to give a rating of “good” when one KLOE falls below that standard, provided it does not amount to a regulatory breach. We see this as a sensible and proportionate approach, enabling the CQC to identify and monitor and acknowledge objectively “good” services.
If adopted in its basic form, the recommendation risks CQC ratings being misleading and disproportionately harsh, particularly where services are objectively “good”. It should not be forgotten that a “requires improvement” rating can cause significant distress and concern to service users and their families. The CQC’s role as regulator is partly to encourage the provision of adequate and suitable healthcare services, not make it near-impossible to attain and maintain “good” ratings.
If the CQC processes were flawless, it may be less concerning as every CQC rating would be properly considered, proportionate, factually based, and fair. However, the CQC can, and do, get it wrong sometimes. Changing the policy on rating risks inconsistency and uncertainty for providers and is likely to give rise to more challenges of CQC’s inspection and rating. There must be better ways to improve care services and the work carried out by the CQC.
Increased use of covert surveillance
The recommendations suggest that covert methods “successfully used by journalists” should be used to “better inform inspection judgments”.
Covert surveillance carries its own human rights, privacy and data protection concerns for service providers, their employees, service users and their families or other visitors. At the extreme, covert surveillance can, in itself, be a form of abuse and/or amount to a commission of a criminal offence.
Detailed consideration of the practicalities, and ethics of using more covert surveillance is outside the scope of this article, but providers should resist CQC being given more powers at the expense of transparency. It may be suitable in very extreme cases, but covert surveillance should not be the norm.
CQC should treat all concerns raised by patients and family members as “evidence”
It would be concerning if the CQC were to apply a one-size-fits all approach to all concerns raised or to treat every concern as carrying the same evidentiary weight.
Lowering the CQC’s burden in respect of evidence gathering is not desirable. This may be more palatable if no concerns were ever raised which were malicious, or based on incorrect or information or belief but that is not realistic. Whatever happens, the CQC should consider transparency, fairness and proportionality in exercising its functions, which surely means treating each concern on its own merits.
If the CQC do move to treat all concerns raised by patients and their families as evidence, they will need to be prepare to deal with and rely on that evidence in a way which does not prevent providers from being able to properly exercise their right to challenge it.
Changes to CQC’s powers to enable them to act more swiftly
On the one hand, where there are valid concerns or credible reports of abuse, it is important that the CQC can act swiftly. However, whilst the CQC remains an imperfect regulator, some of the delays built into their functions are important as they allow providers an opportunity to challenge; so the CQC remains subject to a level of transparency and scrutiny.
Whilst more efficient and effective action is welcomed where there is evidence of abuse, this should not be at the expense of the rights which providers have to be involved in and to challenge the CQC in its exercise of its functions.
So, what now?
In the long term, providers can assume that it will be a matter of when and to what degree – not if – things change. There are likely to be further developments, consultations and publications.
In the short term, there may be a subtle shift in CQC activity, responding to the criticism they have faced. It is entirely foreseeable that they will adapt practices in the short term to avoid further criticism. They may, for example, start to conduct more out-of-hours inspections and may review internal policies on ratings and inspections.
Providers would be sensible to remind all staff about the CQC inspection process and that standards should be maintained at all times of day and night. Staff should be encouraged to take (and keep) a record of what was discussed with the inspector, whenever it takes place.
If providers wish to have a say in the future landscape of CQC regulation and activity, now might be the time to get involved at a policy level.
For more information or to discuss how to get more involved, please contact Ridouts Professional Services plc.

www.ridout-law.com

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