Laura Paton, senior associate at Ridouts, considers what it means should the CQC seek to vary your registration by imposing positive or negative conditions and what you can do should this arise.
For some time, CQC has been undertaking more activity based on risk and focusing efforts on services where they perceive concerns have arisen, or patient safety is at risk. This is not changing under the CQC’s new strategy.
CQC’s business plan for 2020-2023 identifies four business priorities and 10 objectives. One of these is to “use enforcement when we need to keep people safe”. Its strategy launched on 28 May 2021 commits to using its powers and acting quickly where improvement takes too long, or where the changes won’t be sustainable in relation to regulating safety risks.
At Ridouts, we are seeing an increase in providers seeking advice on CQC enforcement action. Some of the tools in the CQC’s enforcement armoury include the ability to serve Notices of Proposal and/ or Notices of Decision to vary or impose conditions of registration.
This can include imposing conditions not to do something. ie embargoes on admissions without the consent of CQC, or the imposition of positive conditions, ie those that require providers to take some sort of positive action. Examples include requirements to send monthly action plans to CQC or to submit monthly information regarding statistics or audits.
In order to impose, vary or modify conditions of registration, CQC must issue a notice to the provider. This can either be served under its general powers by way of a Notice of Proposal (“NOP”) or, if CQC believes that unless it takes prompt action any person will or may be exposed to the risk of harm, CQC can use its urgent procedures by issuing an urgent Notice of Decision (“NOD”) under section 31 of the Health and Social Care Act 2008 (“s.31”).
If an urgent NOD is issued, the new condition will take effect immediately from the date the NOD is served on the provider. Providers have 28 days to appeal to the Tribunal against any changes to conditions imposed by an urgent NOD and any appeal will be subject to the ‘fast-track’ arrangements which means that an appeal will be heard within about two weeks of the appeal being submitted. It is therefore hugely important that a provider has its case and evidence thoroughly prepared. There have been cases where providers have successfully challenged the imposition of urgent conditions by CQC in circumstances where the Tribunal disagreed that the evidence relied upon by CQC amounted to an extreme level of risk which justified such urgent action. This can only be achieved with a careful examination of the issues that the CQC has raised and consideration of what evidence the provider can put forward to demonstrate why the condition(s) is unnecessary.
If CQC seeks to impose a condition via the non-urgent method of issuing a NOP, the NOP will set out the proposed change(s) to the condition(s) of registration including the reasons for the change. The provider then has 28 days to submit representations to CQC challenging the NOP. CQC will then issue a NOD indicating whether or not it accepts the providers challenge. If the NOD indicates that CQC does not accept the challenge and the provider continues to disagree with CQC, they will then have to appeal to the Tribunal. Unlike urgent NODs, NOPs and NODs issued through the general procedures will not take effect until the end of a failed appeal to the Tribunal should a provider choose to challenge the NOP and NOD.
Of importance to providers is the fact that it is an offence to fail to comply with conditions of registration without a reasonable excuse. Providers that don’t comply can be subject to a substantial fine. CQC may also feel the necessity to take further enforcement action in response to breaches of conditions which can include prosecution. Of course, where a condition is imposed under s.31 a provider is expected to comply with that condition even if it is challenging that imposition, or risk being prosecuted for failing to comply. This can be particularly onerous, especially where a positive condition to supply information to the CQC is imposed. At Ridouts we have seen conditions to supply audits and care documentation on a regular basis (sometimes weekly) across several locations of a provider, which has almost required someone to be assigned to the task full-time.
On the other hand and on the face of it, some of the positive conditions may not seem unduly onerous and a provider may not be inclined to challenge them. However, if a condition is not measurable, is open ended, open to interpretation or is unreasonable, it can and should be challenged. If not, the condition could remain indefinitely on a provider’s registration unless they apply to CQC to have it removed. In which circumstances it is not guaranteed that such an application will be accepted. If CQC refuses an application to have a condition removed this will trigger a NOP process again. Therefore, if there is no end date to a condition the provider will be required to comply with it indefinitely (or until it is removed from the registration). This could be overly burdensome and increase the risk of prosecution for non-compliance. This ought to be an important consideration when deciding whether to challenge the imposition of a condition.
Where a condition prevents a provider from admitting service users (with or without the CQC’s prior consent) the CQC is acting as an additional commissioner and exercising operational jurisdiction over a provider which can have huge commercial implications for a provider. At Ridouts we would say that this type of condition should, as standard, be challenged unless there is a good reason not to.
Furthermore, it could be argued that, in the case of certain conditions, CQC is essentially elevating the Fundamental Standards into conditions of registration, a failure to comply with which could lead to a fine or prosecution. This method is highly questionable, particularly as some Fundamental Standards do not give rise to an offence in their own right (for example, staffing and the good governance practices under regulation 17(2)).
CQC must employ a proper assessment of risk when deciding whether to impose a condition and consider whether a breach leading to a potential prosecution or fine is the appropriate and proportionate response. We would argue that, in a number of cases where CQC are seeking to impose conditions, the more appropriate enforcement route, if enforcement is justified at all, would be via a warning notice or even by way of a voluntary undertaking. This is particularly important as the potential fine for a breach of condition is now unlimited.
Accordingly, it is important that, if a provider does not agree with a proposed change to their conditions of registration, or is unsure whether they ought to challenge a condition, they should seek legal advice and, where appropriate, utilise the appropriate appeals mechanisms for challenge. At Ridouts we can assist with this and have experience of successfully challenging these decisions.