Through delightful coincidence, our team has enjoyed two very positive outcomes for clients already this week in relation to challenges against CQC enforcement action. In both matters, CQC’s concerns related to inspections that had occurred several months previously, and our clients’ responses were a mixture of factual rebuttal and evidence of ongoing and embedded service improvements.
As is often the case when providers are faced with potential enforcement action (from Warning Notices through to Notices of Proposal to cancel registration), the initial instinct may be to concentrate solely on the factual inaccuracies; providing what the service considers to be irrefutable evidence of CQC’s errors in judgement.
There may however be potential flaws to this focus:
- First, what a provider considers to be irrefutable evidence may be considered by CQC to be a more nuanced judgement, contradicted by the inspector’s own observations and opinions.
- Second, it can encourage a culture of defensiveness within the service; righteous but possibly blinkered anger against the regulator, without the benefit of insight and reflection.
- Third, and arguably the most practical aspect, it ignores the fact that the timeframes for deciding most CQC enforcement action makes the process a marathon and not a sprint.
For example, with respect to one of this week’s results, our client’s CQC inspection took place in early July 2024. The decision to agree to a withdrawal of the Notice to Cancel their registration was received 7 months later. With respect to the other, the CQC inspection took place in August 2024 and the Warning Notices were withdrawn 5 ½ months later. This is not just a feature of the much discussed CQC backlog. Those of us working in the sector would not have been surprised at equivalent timeframes two or even five years ago.
Within the months between the inspections and this week’s decisions, it is correct to note that a number of the factually inaccurate concerns fell away, as we repeatedly referred CQC to the persuasiveness of our evidence. However, the enforcement action continued to proceed. Rather than relying on specific instances of practices that fell below regulation, CQC’s position was that the systems in place had allowed bad practice to emerge.
CQC’s position was less that our clients had failed to put in place new policies or processes and more that those policies had not embedded. Therefore, CQC argued, they could not be effectively utilised to mitigate the risks about which CQC had concerns.
From the start of our client conversations, we sought to manage expectations. It is vital that providers understand the likely timeframes for CQC processes and to engage accordingly. There is little advantage, for example, in drafting a lengthy action plan with short-term, knee-jerk actions to be completed within an unrealistically narrow time period. Far better for a provider to look at what they actually want to accomplish and how they can accomplish (and, significantly, evidence) that consistently over the coming months.
When corresponding with CQC, therefore, we did not restrict ourselves to engaging only with the legal department. We liaised with the local inspection team, providing evidence of ongoing improvements, third party assessments, and tangible successes. By drip feeding this information, we were able to demonstrate the provider’s commitment to long-term progress and real results. This made it far more difficult for CQC maintain the position that practices were not embedded.
Long-term, strategic approaches to maintaining good practice are of course the best way to maintain good practice and avoid any regulatory breaches. Taking the time to consider what that good practice will look like and in what format a provider can most effectively demonstrate it can seem like a tall order when in the midst of enforcement action from your regulator. It is however the only reliable way to demonstrate that you have embedded regulatory compliance.
As previously mentioned, there are many stories in the media about the backlog in inspection and in subsequent reports. In his Sunday Times interview of 2 February, Sir Julian Hartley (new Chief Executive of the CQC) acknowledged that “CQC is not delivering on its operational performance” and “the number of [inspections] were dramatically reduced”, whilst the outgoing Chair informed the Health and Social Care Committee in January that there are inspection “reports now that go back to some months that are stuck in systems. People cannot get them back out”.
These delays are of real and serious concern to the sector, to the public, and to the reputation of the regulator. However, they do not prevent providers from, and may even provide opportunities to, engage with their CQC inspection teams at a local level and provide practical, overwhelmingly positive evidence of compliance over the weeks and months prior to the enforcement decision being reached.
How we can help
Our team offers representation and guidance to providers facing CQC report challenges, enforcement actions, and issues in employment and commerce. Recognising the unique nature of each business, we collaborate closely to understand your situation and determine the best strategic approach to meet your objectives. Providing comprehensive advice and representation throughout the CQC process, we also support related concerns like safeguarding, inquests, employment, and liaison with commissioners, families, and the media.
Please get in touch with our health and social care lawyers to discuss how we can help at Nicole.Ridgwell@LA-Law.com.
