March 4, 2019 Legal

The Joint Working Protocol between CQC and ADASS; how CQC and local authorities share information about providers

The updated Joint Working Protocol (“Joint Protocol”) between CQC and the Association of Directors of Adult Social Services (ADASS) has recently been published. Whilst not legally binding, the Joint Protocol outlines how CQC works in partnership with local authorities and sets out the areas in which CQC and councils with adult social services responsibilities work together and share information. It is worthwhile for providers to consider what information is shared between CQC and local authorities and consider how they can manage the inevitable increase in scrutiny if they get into regulatory difficulty.
CQC and local authorities share a range of information on a regular basis so that they may fulfil their respective remits as effectively as possible. The Health and Social Care Act 2008 (the “2008 Act”) facilitates the sharing of information between CQC and councils; this is endorsed by the Joint Protocol which recommends that information held by both CQC and councils regarding the quality of services delivered by regulated providers is regularly shared where it is appropriate to do so. As the Joint Protocol establishes, the process is not as straight forward as it may seem, as any decision to share information must be compliant with data protection requirements.
Information will often be shared between CQC and local authorities through regular local information sharing meetings, which may include joint meetings with neighbouring Directors of Adult Social Services/local authorities or health commissioners. The Protocol establishes that, as a minimum, it is expected that routine meetings should be held on a two-monthly basis.
Information shared by CQC may include:
• Inspection and Review reports (published) and information from regulatory work.
• Current quality rating judgement (shared with the provider).
• Other non-statutory notifications and concerns received where appropriate to do so.
• Concerns regarding financial viability of a provider (within the meaning of Regulation 13 of the Care Quality Commission (Registration) Regulations 2009, but not within the context of CQC’s Market Oversight duties which arise under the provisions of the Care Act 2014).
• Local area profiles (which can be accessed and shared on a monthly basis).
• Skills for Care National Minimum Data Set for Social Care (NMDS-SC)
• Documents under section 39 of the 2008 Act: CQC is required to give local authorities copies of notice of proposals, notice of decisions (except for where CQC grants applications for registration as a service provider or manager under section 28(1) of the Act, and importantly where CQC decides to adopt a notice of proposal under section 26 of the Act), warning notices generally and any urgent notices issued under section 31 of the Act (including urgent procedures for suspensions and variations). This list is subject to some exceptions, detailed in Regulation 8 of the 2009 Regulations.
Local authorities, in turn, may share the following information:
• Monitoring reports (shared with the provider).
• Number of complaints and analysis of outcomes.
• Number of Safeguarding Adults referrals and analysis of outcomes.
• Concerns regarding business and commercial operations of a provider.
• Information gathered from social workers and care managers in the course of assessing and reviewing the needs of people who use regulated services, or undertaking safeguarding enquiries.
The Joint Protocol states that CQC will focus particular attention on services that have been rated as “Inadequate” and those that are repeatedly rated as “Requires Improvement”. The Joint Protocol states that CQC and local authorities should contact each other as soon as reasonably possible in respect of any matters that have come to their attention that may require action or a response from the other (such as safeguarding concerns) and inform each other about any action being taken by the registered provider, including notification in advance of action being taken.
A consequence of the frequent and open sharing of information between CQC and local authorities is that if either body raises concerns about quality of care, providers can come under enormous strain from the inevitable increased scrutiny from CQC and local authorities alike (including inspections and contract monitoring visits). At Ridouts, we have seen numerous examples of providers coming under significant strain after safeguarding concerns have been raised. In many cases, providers cannot keep up with requests for information and lines of enquiry from local authorities, which in extreme cases, can be made on a daily basis. Inevitably in such situations, the administrative burden of repeated requests for information makes it very difficult for providers to focus on improving the quality of their service. Such scenarios go against the recommendations of the Joint Protocol, which states that CQC and Directors of Adult Social Services should work towards reducing duplication and burden on providers wherever possible. Providers should not hesitate to remind CQC and local authorities of their responsibilities under the Joint Protocol if they find themselves in such a situation and should consider the legislative and contractual provisions which define what CQC and local authorities can and cannot do in terms of rights of their entry into services, inspection and collection of information.
One of the pivotal powers granted to CQC by the 2008 Act is the right of “entry and inspection” under section 62 (if CQC considers it necessary or expedient for the purposes of any of its regulatory function). The rights of entry afforded to local authorities are more limited. Under section 42 of the Care Act 2014, if a local authority has reasonable cause to suspect that an adult in its area (a) has needs for care and support (b) is at risk of neglect or abuse, or (c) as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it, a local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom. Any further rights of entry for local authorities, if they exist, will be set out in the provider’s contract with the local authority.
A further power granted to CQC under Section 64 of the 2008 Act is that CQC is permitted to obtain information from providers. Such information includes documents, records (including personal and medical records) or other items which the Commission considers necessary or expedient to have for the purposes of any of its regulatory functions. CQC can also demand that providers provide an explanation in respect of any of the information requested or seized by CQC (section 65 of the 2008 Act). Any person who refuses to do this, without reasonable excuse, will be guilty of an offence.
Where a provider has a number of locations across different geographical areas, any issues that arise in one service, are very likely to be communicated to other CQC inspection teams and interested local authorities in other areas. Therefore, if one service is the subject of regulatory action, providers should prepare themselves for inspections at their other services and the possibility of having to engage with CQC and relevant local authorities on many fronts.
Whilst the Joint Protocol between CQC and ADASS should, in theory, reduce the doubling up of scrutiny on providers from CQC and local authorities, in reality, if CQC and local authorities have concerns about a service, the regulatory pressure on a service will inevitably increase. Such pressure can seriously limit a service’s ability to improve because the service’s resources are focussed on meeting requests for information and not on improvements in service quality. Providers who are aware of the legal position in such circumstances will know when and how they can push back, thereby limiting the pressure on their services and putting themselves in the best position to navigate the pressures faced. Indeed, in such circumstances, information is power.

Joanna Sharr

www.ridout-law.com

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