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LEGAL VIEW: Is the CQC exacerbating the current state of care?

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Ridouts Director of Marketing & Compliance, Caroline Barker, considers how the CQC’s new approach to inspections may feed the problems recently highlighted by CQC itself in the 2021 State of Care report and asks whether overall ratings will decline as a result.

The CQC is very quick to tell providers how they are not meeting the regulations or what they are doing wrong but rarely, if at all, do we hear stories of the CQC saying, “If you do x, you’ll be deemed to be meeting the regulations.” An example which is common, is that of staffing – the CQC will say that a provider does not have sufficient numbers of staff on duty to meet need.  Often providers believe that they do and will reference a dependency/staffing tool but still the CQC says they are in breach of Regulation 18 of the Health and Social Care Act (Regulated Activities) Regulations 2014.  When the CQC is asked, “Ok, well what levels would you suggest?” they refuse to say, pushing that decision back onto the provider (but refusing to accept their evidenced staffing levels).

This approach is also evident in the latest State of Care Report 2020/21 published on 22 October 2021.  The CQC tells the world that there are major workforce challenges. The CQC is quick to recognise that reduced capacity and choice, due to staffing losses, will lead to poorer quality care.  But what is the CQC going to do to help providers, and in turn service users to reduce the impact of this across the entire health and social care setting?  That is detail that I cannot see in the State of Care Report.

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The CQC states it is an independent regulator.  Its purpose, to “make sure health and social care services provide people with safe, effective, compassionate, high-quality care and [it] encourage[s] care services to improve”.  It registers, monitors, inspects and rates services, will take action to protect people using services and publishes its views on major quality issues in the sector.  The CQC states that throughout its work it will protect the rights of vulnerable people, listen to and act on people’s experiences, involve the public and people who receive care and work with other organisations and public groups.  Providers are not mentioned.  I have previously noted that in the CQC’s new strategy for the changing world of health and social care – from 2021 (“CQC Strategy”) the voice of the provider is missing.  And in the State of Care Report, there are no anecdotes from providers interspersed in the text about the difficulties they faced, pre, during and post the pandemic.  Providers continue to be low down in the pecking order but despite one of the most damning assessments of the state of the adult social care sector, little practical support is being offered.

To add insult to injury, Ian Trenholm has said that the CQC may well take enforcement action against providers if non-exempt, unvaccinated care staff continue to work.  Yes, the regulations are clear.  Yes, registered providers have to comply with those regulations.  But with carers already leaving the sector and residential care staff vacancy levels having risen by over 4% in less than five months (from 6% in April 2021 to 10.2% in September 2021) the threat of enforcement action is going to hit the sector when it is already down.

The regulator is headed up by a man who indicated, on his appointment, that he was expecting to bring more prosecutions of providers and recruited staff with police and military police backgrounds to ensure that the CQC’s evidence review team was more effective so, in turn, the CQC could prosecute providers more effectively.

CQC has shifted away from timetabled inspections, to inspections being carried out where there is deemed risk.   As of March 2021, 54.93% of CQC inspections that were triggered by risk were triggered by “information of concern” – enquiries related to “safeguarding, whistleblowing, concerns and complaints” and as I wrote in April this year, gone are the days that inspectors come in looking for ‘Good’ but rather inspectors are being anchored by the information that informs the inspection. So are we going to see a decline in ratings for providers in months to come?  After all, routine inspections largely ground to a halt during the pandemic so is it any real surprise that the percentage of Overall ratings for Adult Social Care in July 2021 were largely a continuation of those percentages noted in the 2020 State of Care Report (March 2020)?  I fear that an increase in overall Requires Improvement and Inadequate ratings are on their way. Indeed, the CQC noted at its October Board meeting that since April 2021 it has undertaken 2,274 inspections in response to risk, and of the 1,711 published reports, over 50% were rated Requires Improvement and Inadequate.

At Ridouts we have seen a marked increase in the use of enforcement action against providers and often at the high end, without encouragement to improve first (see CQC’s Purpose, above).  The CQC thinks that enforcement action will prompt improvement – and don’t get me wrong, sometimes it’s necessary and it has the desired effect, but it can be an overly aggressive way of achieving it.  CQC has spoken about being more supportive but it also wants to maintain its “core regulatory role” which is using its powers where it sees poor care.  And this is applicable to ratings too – the CQC think that ratings will encourage providers to improve.  But simply telling someone they don’t quite meet the mark doesn’t necessarily encourage improvement especially when it’s not constructive and potentially inconsistent with what other stakeholders (eg commissioners) are feeding back to providers.

This takes us full circle – they’ll tell you what you’re doing wrong, but not what to do to put it right.  The CQC has identified a sector-wide issue.  It cannot sit back and do nothing and it certainly shouldn’t be stoking the flames by punishing providers for something that is a problem bigger than they can tackle at an individual level.

As an independent regulator, the CQC should take all views and voices into account.  In the State of Care Report, the CQC said: “The pandemic has reinforced how vital adult social care is for the many people who rely on it.”  The CQC should be supporting the sector. Yes, it should be taking action, when needed, but it must do so in a measured and reflective way. That includes listening to the provider and working with them for the ultimate benefit of service users and the wider sector.

If you have been on the receiving end of CQC enforcement action, an inspection report that you disagree with or a rating that is not reflective of your service, contact the Ridouts team on 0207 317 0340 or info@ridout-law.com  You can find out more about what we do to help providers at www.ridout-law.com.

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The author Lee Peart

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