October 30, 2019 Legal

How Safe are your Ratings?


Inspection reports do not just contain ‘findings of fact’, they also make judgements as to the application of quite complex law. Aside from the general principles of proportionality and fairness, it really is quite difficult to determine whether that single missed signature on a MAR sheet does or does not fall short of the “proper and safe management of medicines”. So do they always get it right? Er, To be fair to inspecting officers, they are not legally trained. To be fair to providers of care, they ought to be.

If some of the legal judgements are merely arguable some of the time, then we could all agree that glaring errors of law against providers in statutory inspection reports are completely unacceptable. But they do happen. And rather frequently. And in a number of recognisable patterns.

A registered manager vacancy is a rich source of errors of law.

Judgement: “The failure to have a registered manager in position was a breach of Regulation 5 of the Care Quality Commission (Registration) Regulations 2009.”
Sounds OK. But this regulation is all about when a registered manager condition is to be set. Responsibility for this process lies with the CQC not with the provider. Sad to say the regulations do not apply to the CQC. There is thus no such thing as a breach of this regulation! (False statements in applications – e.g. such as to misinform CQC about the status of the organisation – would come under section 37 of the Health and Social Care Act 2008.)

Judgement: “There was a breach of regulation 7 of the Regulated Activities Regulations 2014. Providers are required to have a registered manager in post where they undertake regulated activities. There was no registered manager in post.”
Again, sounds good. But. Regulation 7 is about the fitness of the manager. If you think about it, to be non-compliant with this provision, for starters you would have to have a registered manager – else how on earth could the fitness of said manager be assessed? A service with no registered manager in post could be in breach of all sorts of provisions. But not this one. Common error. (Failure to comply with a registered manager condition without reasonable excuse comes under section 33 of the Health and Social Care Act 2008.)

Judgement: “This is a breach of Regulation 18 of the Care Quality Commission (Registration) Regulations 2009. The failure to notify us of matters of concern as outlined in the registration regulations is a breach of the provider’s condition of registration and this matter is being dealt with outside of the inspection process.” It’s the Headmaster’s office for you.
The treatment of the Registration Regulations as having some higher status in law, deserving of some especially grisly punishment in breach, is a glaring error of law. They are indeed different from the Regulated Activities Regulations, inasmuch as the latter address the robustness of arrangements, whereas the notification regulation is a “must notify” provision, additionally without the possible defence of a reasonable excuse – meaning that a single omission is indeed a breach. However they are NOT conditions of registration. Were this fatuity actually correct they could not be imposed on you without agreement or without the right of appeal. You could apply to have the ‘condition’ amended or removed. They are in truth just one of the sets of “relevant requirements” that apply to all services.

Failures to exercise discretion properly can also be glaring errors of law. The blanket policy of downgrading the overall rating on a single breach of regulations regardless of risk. The inflexible approach to registered manager vacancies that sets an alarm clock without individual assessment of the steps taken to appoint. The inspection of selected domains so as to carry forward old ratings into a pre-determined new rating. The monumentally offensive refusal to upgrade ratings at a follow up inspection on the spurious line that “to do so would require evidence of sustained improvement over time”, byee. I have yet to find a report that says ‘we could not downgrade the ratings to Inadequate as to do so would require sustained evidence of unsafe care over a period of time’.

There is little or no evidence that the Care Quality Commission recognises let alone has any plans to address these matters. There is precious little evidence of a “strong focus on continuous learning at all levels of the organisation”.

HSC Professional (Consultancy) provides consultancy at a fraction of the cost of solicitors, with fixed fees for standard work (response to draft inspection reports and proposed enforcement, requests for review of ratings); response to notices of proposal; compliance assessments; and provider information returns; for care homes and domiciliary care services.
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