We recently acted for a client who received a letter from the Care Quality Commission (CQC) late on a Friday afternoon stating that it was considering taking urgent enforcement action against it; by Monday afternoon the CQC had served an Urgent Notice of Decision imposing conditions on our client’s registration as a service provider.
As the independent regulator of health and adult social care, the CQC has an overarching role to monitor, inspect and regulate health and social care services to make sure those who use these services receive high-quality, safe, effective and compassionate care.
The CQC has two primary purposes when using enforcement powers:
- to protect people who use regulated services from harm, and the risk of harm, and to ensure they receive health and social care services of an appropriate standard by either requiring or forcing improvement; and
- to hold providers and individuals to account for failures in how the service is provided
The CQC can use different types of civil enforcement action in order to achieve these purposes including imposing, removing or varying conditions of registration; cancelling registration; urgent procedures; and special measures.
Where the CQC chooses to exercise its power to impose conditions or suspend registration on an urgent basis, under sections 30 and 31 of the Health and Social Care Act 2008 (“the Act”), the decisions have immediate effect. Service providers are entitled to appeal against the use of these urgent powers but this does not prevent the condition or suspension taking effect.
In our client’s particular case, we were instructed to appeal the Notice of Decision served under section 31 of the Act to the First-tier Tribunal (Health, Education and Social Care Chamber). This meant that our client only had 28 days from the date of the Notice to submit an appeal application to the Case Standards Tribunal.
The Appeal Process
We guided our client through the appeal process to ensure its appeal application was submitted within the requisite time limit to the Case Standards Tribunal. The 28-day period within which an appeal must be issued is a statutory time limit which cannot be extended, so it was imperative that all the necessary documents and evidence were ready in time to ensure the appeal deadline was met.
The appeal application form requires the service provider to specify the result it is seeking and set out the reasons why the CQC’s decision to impose conditions was wrong.
As our client was appealing a CQC decision to impose conditions on an emergency basis, its appeal was governed by a document called a “memorandum of understanding” which means the Care Standards Tribunal has agreed to process and hear such appeals very quickly. All cases appealing the CQC’s enforcement action on the basis of urgent procedures are fast-tracked.
This means that once the appeal application had been submitted, the Tribunal registered the appeal within 24 to 48 hours; a Telephone Directions Hearing with a Tribunal Judge was listed and the CQC was given three working days to respond to our client’s application. Thereafter the appeal hearing was listed 10 working days after the CQC filed its response. In practice this means that, unlike many other court and tribunal procedures, the appeals process takes no more than 14 working days.
Best foot forward: negotiating with the CQC
In this particular case, we advised our client to submit its evidence, together with its appeal application, so that it could start negotiating terms of settlement with the CQC immediately after filing its appeal rather than going through the 14-day appeal process. The advantage of this approach is that we were able to negotiate a Consent Order with the CQC within three working days of filing our client’s appeal.
To be able to do so we produced a detailed witness statement with extensive exhibits showing the actions taken to rectify the issues identified by the CQC during its comprehensive inspection. Whilst this approach was appropriate in the circumstances of our client’s particular case, it is not appropriate in all situations.
Nevertheless, even if we had not adopted this approach, it is likely that the Tribunal would have directed each party to produce evidence within very short time-limits and within the 14-day process. It is therefore vital that providers and registered managers are proactive and keep detailed records of all the actions and processes put in place to address the concerns raised by the CQC.
The appeal hearing
At the appeal hearing the tribunal can dismiss the appeal in which case the Notice of Decision is upheld and takes effect; or uphold the appeal and consider whether to remove and/or vary the conditions imposed on the care-home provider depending on the evidence before it.
In our client’s case the appeal hearing was not necessary because we were able to agree a way forward with the CQC without the need to incur the further costs of going to a final hearing. However, more importantly in light of the evidence we submitted to the Tribunal, together with our client’s appeal application, we were able to negotiate a variation of the conditions imposed on our client’s care home to ensure its service could continue operating without the added financial pressure of the conditions imposed by the CQC in its urgent notice.
Re-inspection: light at the end of the tunnel?
Where the CQC has taken civil enforcement action against a provider of health and adult social care services, it usually means that the provider’s services have been rated at best ‘requires improvement’ and at worst ‘inadequate’ following a comprehensive inspection. However, as well as regulating and inspecting the health and social care providers, the CQC’s role is to also monitor them and provide them with an opportunity to improve. As such, it will usually arrange re-inspections within six months of publishing its report online. It may also carry out focused inspections which, although not rated, will result in the publication of a shorter report on its website.
In an environment where the health and social care sector system is struggling with increasingly complex demand, access and cost challenges, service providers need robust legal advice to guide them through the complicated regulatory framework, not only to mitigate the enforcement action that CQC can take, but also, ultimately, to mitigate the impact on their business and their ability to deliver high quality care.