RIDOUT REPORT – February 2020
By Laura Paton and Paul Ridout
CQC’s new draft Registering the Right Support guidance – A missed opportunity for clarity and yet another consultation blunder?
In May 2019, CQC announced that there was to be a review of its Registering the Right Support guidance “to ensure that its principles are clear and its aims are achieved.”
This began with a scoping exercise in May 2019 where CQC sought stakeholder views on a number of issues including: the definitions of ‘campus’ and ‘congregate’ settings; how the size and scale of a service may impact on CQC’s registration and inspection judgments; how the guidance sets out what is expected of supported living services; and how to ensure the Nice guidelines are reflected in the policy.
In addition, in respect of the status of Registering the Right Support as statutory guidance (issued under section 23 of the HSCA 2008), CQC stated that whilst they consider Registering the Right Support to be such statutory guidance, they “want to make that clearer within the guidance to ‘avoid future confusion’”.
Now that the new draft guidance has been issued, it seems that confusion on the key points as well as on its status prevails.
Status of the New Draft Guidance
The new draft guidance was issued on 31 January via the CQC’s citizenlab engagement portal. CQC have given stakeholders a period of only 14 days to take a 9 question survey to provide feedback on the guidance. We will return to whether this amounts to an appropriate consultation for amendments to statutory guidance at the end of this article.
The new draft guidance has been renamed Right Support, Right Care, Right Culture and is in two parts: a 9 page document which CQC state details what they “expect good care to look like for people with a learning disability and autistic people” and a second annex document containing case studies which CQC state are “mainly based on decisions we have made about registration applications and in our monitoring and inspections.” This document sets out that there will be fuller lists of case studies provided on publication of the guidance covering different Health and Social Care settings.
Before turning to the substance of the content of the draft guidance documents, clarity needs to be provided by CQC about the status of these new documents and whether they are intended to replace or supplement the existing Registering the Right Support guidance document (June 2017). The introduction to the engagement exercise on the portal states that:
“CQC published ‘Registering the right support’ in June 2017 following a scoping review. The guidance sets out our policy position on how providers of health and adult social care should meet the fundamental standards in line with best practice when developing services for autistic people and people with a learning disability. Last year, we decided to review this guidance, so carried out an engagement exercise to explore with a wide range of people how we can make improvements to it. They told us that the guidance should be clearer and should better reflect personalised care and outcomes for people. We have now revised the guidance, which we have renamed ‘Right support, right care, right culture’, and are sharing it with you for your views.”
This suggests that the new guidance is revised guidance which replaces the earlier version. However, page 4 of the draft guidance itself states that:
“Registering the Right Support was published following consultation in 2017. From time to time we revise the guidance we issue. This guidance has been revised and retitled and continues to be statutory guidance in accordance with s.23 of the Health and Social Care Act 2008.
Our policy on regulating providers that support autistic people and people with a learning disability remains unchanged from Registering the right support, but, having sought feedback, we have aimed to clarify to providers how we might implement the policy in this update.”
This would suggest, although it is not clear, that the new guidance documents are intended to supplement, rather than to update and replace RRS June 2017. If this is what CQC have intended, it is an unfortunate approach to updating the guidance particularly when one of the stated aims of that exercise was to make the guidance clearer and avoid confusion.
What does the new draft guidance add?
So what are the policy updates that CQC say the new guidance aims to clarify?
Well the update document is relatively short. A number of the areas are uncontroversial such as a commitment to Human Rights, person centred care and people’s needs being at the heart of decisions and judgments.
In terms of practical application for Providers who are seeking to register new services there are six short sections setting out more detail on what CQC will expect from them.
For example, in relation to local need the update states that they will want written correspondence from Commissioners of the clear need for a new service. Though what they are asking for in an NHS context seems unrealistic “NHS England must have requested these hospital services, and written confirmation must be provided as evidence of this.”
This can be tricky for Providers. Commissioners are rightly nervous to commit to services that are being considered rather than those which are complete. Further, Commissioners are concerned that they might be seen as making commitments or influencing the market. This requirement for written confirmation is likely to be a high hurdle for applicants and surely commercial success is a matter for investors to risk and not for CQC to dictate.
In terms of service setting there is no clarity on the so called 6 bed rule. This is disappointing for Providers as it has become one of the key sticking points in having new applications registered. The presumption of 6 beds or less is not explicitly mentioned in the new draft guidance. It simply states that the size, scale (number of beds) and design of the premises would not compromise the quality of care, people’s safety or their human rights and will allow people’s dignity and privacy to be maintained and facilitate person-centred care. It does state that the size scale and design ought to be in line with best practice but provides no clarity on the what the appropriate sources of up to date current best practice guidance on this point would be. This is interesting where CQC are apparently increasingly registering or rating as Good or even Outstanding services with more than 6 beds. Clearly it is possible to achieve good outcomes in services that are larger than 6 beds.
On the issue of setting of a service, what is interesting from a perspective of promoting choice, independence and person-centred care is that this section of the new guidance leads with a statement that people should have “a choice about where I live and who I live with” but goes on to set out that services are expected to be in the local community and not geographically isolated. Again CQC fail to recognise that there are some people in the learning disabled/autistic community who may choose to live, or who may have their specific needs better met, in more rural settings. CQC’s guidance stifles the opportunity for services to be developed to meet that choice.
Overall, the new draft guidance does not really take Providers much further forward. It feels like a disappointing missed opportunity to provide real clarity on the key issues that are causing difficulties for providers and stifling growth and development in the sector that would otherwise assist in furthering the Transforming Care Agenda by allowing new services to be developed to enable individuals to move out of inappropriate in-patient care settings. Despite, the May scoping exercise having identified a number key issues that required to be clarified this new guidance or supplement or whatever it is intended to be does not address these issues with any real clarity.
Furthermore, what continues to pervade this new document is the incorrect assertion that, in order to achieve registration, Providers must follow guidance to the letter and must demonstrate absolute compliance with best practice guidance. This is incorrect in law. Guidance is only guidance and it can be departed from with good reason. This is the case even for statutory guidance. In terms of the Health and Social Care Act and the regulations the duty on providers is to “have regard” to the statutory guidance. There may be a good reason to depart from it. CQC continuing to fail to recognise this and seeking to enforce its guidance documents as though they are the law could amount to a fettering of discretion which is unlawful for a public body.
CQC are apparently seeking not only to regulate the market but also to shape and control the market. In that manner they are acting well beyond their remit as the national regulator.
Stakeholders have been given 14 days to provide their comment on the new draft guidance. This must be done via the citizenlab portal by 13 February 2019.
That in itself is interesting. Firstly as stakeholders have been given only 14 days to respond to an update to a controversial piece of guidance and which has taken over 7 month for CQC to produce.
It is also not clear whether the survey on citizenlab is intended to be a formal consultation. As CQC ought to be well aware from their unfortunate first edition of Registering the Right Support (February 2016) which was issued with no consultation and had to be withdrawn, sections 24 (1) and (2) of the Act require consultation on statutory guidance and on substantial changes to statutory guidance.
One would therefore expect that this amended guidance would require a proper, accessible and meaningful consultation in line with public law principles. As there is no mention of this consultation on any other areas of the CQC website, including the dedicated consultation section of their website, one can only assume that the citizenlab survey is intended to be the consultation. Is it, however an appropriate and meaningful consultation? Does a 14 day period to answer 9 survey questions solely via an online portal on two documents which appear to be a fait accompli amount to a genuine consultation? CQC need to be careful they don’t find themselves in hot water on the consultation point yet again and the irony of that will not be lost on those providers seeking to develop new services who have been incorrectly accused by CQC of not approaching their consultation on new services in a meaningful or genuine way.
Providers can take share their views on the new draft guidance by following this link https://cqc.citizenlab.co/en-GB/. The deadline to do so is the 13 February 2020.
For any queries related to this article Paul and Laura can be contacted at Ridouts on 0207 317 0340.