October 15, 2018 Legal

Who guards the guards? CQC’s power to ‘exercise discretion’ has potential to bring a sector to its knees

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As a national regulator, the Care Quality Commission holds untold power in its hands. That power, as enshrined in the Health and Social Care Act 2008 and mechanised by a variety of detailed regulations, is intended to set out to health and social care providers clear requirements and expectations. “If you do A, B will happen”, “If you don’t do C, we will do D” – sounds pretty straight forward doesn’t it?
The ideal is a regulatory regime that is entirely predictable and clear for everyone to understand. A system where you know exactly what is required of you and where you can rely on government body representatives to play by the same clear rules that set out for you – the provider. If only it were that simple.
Guidance adopted by the CQC that underpins enforcement action and dictates how inspections should be conducted and draft reports produced, affords inspectors a degree of discretion and allows them to make judgements based on their own perceptions of evidence that is gathered. So what happens when that discretion is compromised or an inspector does not properly understand what they have witnessed? How can a provider guarantee that a CQC inspector will deliver a fair representation of its service? The truth is: there is no guarantee.
Approach at inspection
At Ridouts we have advised clients on various cases where inspectors have simply refused to look at evidence or have found something of “concern” but have simply dismissed the explanation as unimportant. This has led to inspection reports that are inaccurate and misleading. We have challenged such findings through the factual accuracy process but these are primarily reviewed by the inspector themselves – can they honestly be relied upon to question their own reliability. Whilst Ridouts had high hopes that the judgment in the SSP Case would improve the factual accuracy process (by having an independent person who was not involved in the inspection process review the comments) but this was wishful thinking. After receiving the judgment the CQC changed its procedures so that the Inspection Manager (the inspector’s boss) had to sign off any factual accuracy responses before being returned to the provider. Is this really an independent person? The manager is surely accountable for the performance of the inspector and so how freely are they really going to agree that their performance has been lacking? There is absolutely no guarantee of impartiality. We also recently lodged a complaint about an inspector who had been aggressive and intimidating to care staff during an inspection. Unfortunately the CQC saw fit to refer this correspondence to the inspector herself to investigate matters. I mean, really? Only after several protestations was the matter referred back to the complaints team for its consideration.
Skewed ratings can result in serious consequences for providers with some commissioners refusing to contract with services that are “Inadequate” and in some cases “Requires Improvement”. The CQC simply do not have an appreciation for how important it is to get this right. Whilst we all agree that the service user’s rights and needs should be at the heart of the inspection process, the CQC still has a responsibility to give a fair and true reflection of a service that is based on tangible evidence and not hearsay or misinterpreted documentation. Factual accuracy comments should be given proper consideration by an independent team within the CQC. This is the only way to ensure a fair response.

Registration of services
Ridouts has also noticed an even more serious trend in recent months relating to the registration of learning disability services. As most providers will be aware, the CQC has introduced guidance which suggests that learning disability services over 6 beds will not be registered as it does not fit the regulator’s preferred model. The recent case of Care Management Group Limited v Care Quality Commission 2017/3163/EA the guidance appeared to receive the backing of the Tribunal but, the panel in the case emphasised the need for the CQC to exercise discretion when registering services that did not fit the model in the guidance. This would involve CQC’s careful consideration of the proposed offering and the provider’s application. Unfortunately, we have had a number of recent reports from clients who are in the process of planning or building learning disability services that do not fit the model (most typically are for between 6-10 service users). Upon hearing about the plans or seeing signs of building works both compliance and registration inspectors have responded with outrage and helpfully informed the provider that “you’ll never get that registered – don’t bother”. That comment is made without one iota of information about what kind of care is going to be delivered. In the inspectors’’ view, they see that a service is for over 6 service users (a “magic number” cited in the first iteration of the guidance which has since been determined as being too prescriptive). This attitude clearly demonstrates two things: 1) That the CQC is not effectively trickling information down to its team on the ground. Where is the discretion in a statement like that? How are providers going to be able to demonstrate the merits of their model if the inspector is of the narrow view that anything above 6 bedrooms in this area is not acceptable? How does that fit with the Tribunal’s requirement that the CQC exercise discretion (a discretion that is cited in its own guidance)? 2) Individual inspectors are improperly stifling growth, shaping the market and mis-applying the CQC’s guidance. This is not acceptable.
Ridouts currently has conduct of almost a dozen cases concerning this issue – some of which are heading to the Tribunal. Our views and concerns about the validity and application of the guidance is widely known but to have inspection staff “on the ground” conveying inaccurate information and making decisions about providers’ businesses is wholly unacceptable. Individual inspectors are discouraging growth because a proposed service doesn’t fit with their outdated and misguided interpretation of the guidance. They offer providers no information about what a provider must submit in order to prompt the CQC’s “discretion”. The whole issue is a game of roulette.
Conclusion
Providers ought to be able to rely on a uniform approach where all inspectors have the same level of expertise and can exercise the same level of understanding and reasonableness when making decisions. Unfortunately, individual personalities, skillsets and degrees of diligence mean that interactions and subsequent reports / decisions from the CQC are inconsistent. This is having an enormous impact on the health and social care sector where services are closing down because they can no longer take the unfairness of a system that is geared against them and that appears to be intent on limiting growth.
In the very near future we will wonder why there aren’t enough services for people with learning disabilities that need care but want to live in the community or beds for vulnerable older people that can no longer safely live in their own homes. I hope the CQC realises the impact that it has and that it must acknowledge that it has a responsibility to providers as well as service users. The CQC could be a force for good, advising and encouraging good care and identifying positive examples in the sector. Instead it has morphed into a press machine desperate to show the public that it can flex its muscles to take enforcement action against “poor providers”. Whilst the cause is admirable, the reality is that decisions are being based on unreliable evidence that is being gathered by a staff team that is inconsistent and who cannot guarantee a fair or impartial approach.

Jenny Wilde

Senior Associate Solicitor

Ridouts Professional Services

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