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LEGAL ADVICE: Be wary of warning notices

Laura Paton

Ridouts Senior Associate Laura Shelton considers what providers should do if they receive a Warning Notice and discusses why these should not be ignored.

Under its new strategy and its current monitoring approach CQC is clearly and unapologetically focused on risk and not improvement. As a result, at Ridouts, we are seeing clients experience a rise in enforcement action.

In recent times we have seen CQC inspect services and inform providers, before they have issued a draft report, that they intent to issue a Notice of Proposal to cancel registration, however, weeks then pass by and then what arrives instead is a Warning Notice. Many providers may breathe a sigh of relief at this and not give it much further thought.

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However, this type of low level enforcement action can quickly escalate to the CQC taking more serious action so warning notices should not be ignored. This article considers why and how to respond to a warning notice.

What is a Warning Notice?

Warning Notices are issued where a service is deemed to have failed to or is continuing to fail to comply with a legal requirement. CQC can issue a Warning Notice for a current breach or for a past breach which has been rectified, if it considers the past breach was serious enough.

A Warning Notice must be issued in writing, and must state: the relevant legal requirement that the registered person is not complying with; how the registered person did not comply; and the timescale within which the CQC expects the registered person to become compliant.

There is no legally-set timescale for complying with a Warning Notice and the CQC can set any period which it considers reasonable. In accordance with their guidance, that period must reflect the degree of risk to the safety and welfare of people who use the service and must be a realistic and achievable timeframe.

Please note the timeframe to comply with the Warning Notice and the deadline to submit representations to the Notice are two separate things and often fall on different dates.

Who will know I have received a Warning Notice?

The CQC must send a copy of any Warning Notice that it issues to relevant external bodies, such as Commissioners, in line with section 39 of the Health and Social Care Act 2008.

The CQC may, and frequently does, decide to publish Warning Notices more widely either in press releases and/or in inspection reports which can lead to an incorrect narrative about your service being placed in the public domain and even adverse press coverage. For these reasons a robust response is important.

What representations can I make to a Warning Notice?

The CQC’s powers to issue and publish Warning Notices are discretionary. Although there is no statutory right of appeal against a Warning Notice registered persons can make representations about it which can include that:

  • the Notice contains a serious error;
  • is based on inaccurate ‘facts’;
  • has not been issued in accordance with the legal test;
  • makes requirements that are not reasonable or proportionate; and/or
  • it would be unfair to publish it.

Thinking about the CQC’s current monitoring approach and approach to inspections, it is easy to see how errors and inaccurate conclusions could arise. This could be because the conclusions have been reached following a monitoring review that has taken place without crossing the threshold of a service.

Or it could be because an inspection has only looked at a few of the five domains or because part of the inspection has been carried out purely by reviewing documentation, without the same context and corroboration that is gleaned during a comprehensive inspection.

Even if you do not dispute the facts in a Warning Notice it is still possible to make representations as to why it should not be published, for example, because it is not in the public interest or because it relates to a historic breach that has already been rectified. Representations must be made in writing, within 10 working days of receipt of the Notice.

How can CQC’s respond to representations?

Once your representations have been reviewed, the CQC can decide to either: not uphold the representations; or to uphold them. In accordance with its guidance there is no decision to partially uphold representations. If they are upheld then the outcome letter should formally record that the Warning Notice has been withdrawn.

The CQC can also withdraw an initial Warning Notice if it contains an error, however, if the CQC decides that it is still appropriate to issue a Notice it can go on to issue another Warning Notice.

Once the decision as to whether the representations are upheld or not is reached the CQC will then decide whether to publish the Notice.

If the CQC withdraws a Warning Notice, they will not publish the details of it and will inform any relevant external bodies who have been informed of the Notice that it has been withdrawn.

Why should I take a Warning Notice seriously?

The CQC will rely on any failure to challenge Warning Notices as evidence that the service acknowledges the appropriateness of them. This could lead to more serious problems so a Warning Notice should be taken seriously and responded to.

This is especially so in the current climate where the CQC have removed fixed times frames for re-inspection from the Provider Handbook leaving providers with no idea about when they can expect to be re-inspected to put the facts straight and demonstrate compliance.

Where can I get more information/assistance with Warning Notice representations?

Ridouts regularly assist providers to prepare robust representations to Warning Notices. This can lead to the notices being withdrawn and/or not published more widely.

If you have received a Warning Notice, contact Ridouts on 0207 317 0340, who can explain your available options.

Tags : Legal AdviceRidoutsWarning Notice
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