July 1, 2019 Legal

Standing up for your business

We have many providers of health and social care services contact us to describe in detail the injustices they have suffered at the hands of a regulator, a commissioner or a professional regulatory body. These stories often relate to inefficiencies within those respective organisations that have led to incorrect conclusions or unreasonable or disproportionate regulatory responses.
Providers will ask us – “but what can I do about this?” Our response is always clear. You can stand up for your business and hold the external bodies to account. Unfortunately, this response often takes providers by surprise and they wince at the prospect of going head to head with an organisation that has so much influence on the success of their business. This ultimately deters them from standing up against inaccuracy or unfairness out of a desire not to “rock the boat”.
This attitude is having a serious and long-lasting effect on the health and social care sector. When regulators and other influential stakeholders are not held to account they continue behaving poorly. If there is nobody pointing out the problem with an approach, that body will never change their ways. Providers will continue to be unfairly represented in inspection reports, hoodwinked through safeguarding investigations and refused registrations without proper justification. Failing to stand up for your business will not give you an easy life – it will make life harder for everyone.
Poor inspection reports lead to enforcement action which can result in a variation or even cancellation of your registration. Make sure the inspection report is correct! Examine the conclusions arrived at by the inspection team and consider the evidence that has been reviewed. Be mindful of the inspector’s attitude and make a point of remarking on any subjectivity that you may perceive. It may not seem important at the time but every point in an inspection report must be truly reflective of your service – it is your biggest marketing tool as well as a record of quality that will be relied upon by the CQC to demonstrate a history of your service’s compliance.
When dealing with safeguarding investigations, ensure that the investigating body has given to you as much information about an allegation as is possible in the circumstances. They ought to be clear about what the allegations are, who they involve and how this has impacted or may impact your business. Far too often to safeguarding investigations cloaked in secrecy and providers are left wondering what the matter relates to and whether or not a member of their staff team are involved. I have worked on cases where councils have received allegations from whistle blowers months before actually informing the provider. This has meant that the alleged action has been allowed to continue because the provider was never told what it was or who it related to. This is obviously highly dangerous because it exposes service users to continued risk and makes it impossible for the provider to act.
Challenging a safeguarding board doesn’t mean that a provider should be unco-operative, quite the opposite. A provider should be proactive in the way that it communicates with the safeguarding team, requesting access to information and enquiring whether or not the investigation team requires any information that may aid the enquiry. Too often do local authorities investigating incidents go silent for long periods of time – failing to keep providers up to date with progress. This can have a serious impact on providers, particularly when they have suspended a staff member that may have been involved in an allegation – on full pay.
Providers are entitled to demand updates and to properly understand the allegations made against them- particularly if existing service users may be at risk.
Providers often worry that standing up to the CQC, local authority or CCG will result in a change of dynamic in their future relationship and an increase in scrutiny or a more harsh approach as “revenge” for raising concerns. In this firm’s experience, we find that holding the regulator or any other external body to account will have quite the opposite effect. Providers are ultimately handled with far more care and precision than previously – particularly when they have involved legal representation. This sends a message that the provider is not frightened to hold the regulator, commissioning body or any other party involved with the service, to account.
Reputations within the sector are highly valuable and any regulatory or safeguarding activity can quickly attract the attention of other commissioners or even the press. Providers have to make sure that what is being said about them is not only factually accurate but is also proportionate and justified. We would never advise that providers shy away from confronting unfairness or activity that has the potential to damage their business. Providers should feel empowered to give a good account of themselves and to make sure that they are fairly represented. This can be achieved through open dialogues, participating in open consultations or even lodging complaints where necessary.

Jenny Wilde

www.ridout-law.com

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We speak up for the independent sector. All news articles are published by editor Viv Shepherd.

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