Gemma Nicholas, Solicitor at Ridouts, asks what inspections may look like in the future in light of CQC’s new strategy to be published in 2021 and how this might impact providers.
On 16 March 2020, due to the coronavirus outbreak, the CQC announced that it was suspending inspections. Some providers and care associations were of the view that after this announcement the CQC was ‘missing in action’, in particular that the CQC failed to provide valid data on COVID-19 related deaths in care homes, data which they were privy to via notifications of death of a service user under Regulation 16 of the Care Quality Commission (Registration) Regulations 2009. The CQC has attempted to set the record straight stressing that they have “continued regulating” the health and social care sector.
It took the CQC almost two months to regain visibility through its Emergency Support Framework (ESF). This new monitoring tool was branded as a framework for the CQC to have regular “honest conversations” with providers but their approach led Ridouts to warn providers to keep their wits about them. The CQC used the ESF to continue its monitoring activity, engage regularly with providers and concentrate on inspecting only those services that were deemed high risk. Coronavirus forced the CQC to truly take a risk based approach to regulation.
As part of these “honest conversations” the CQC sought to offer advice and support to providers usually by way of signposting. Nevertheless, providers were seeing a new side to the CQC, a regulator that was ‘for’ rather than ‘against’ the provider. It took a while, but the CQC started to acknowledge that this change was welcomed by the sector. It was during webinars on their new strategy that the CQC learnt that the sector had valued the CQC’s supportive role that had emerged through the ESF.
The ESF was CQC’s approach to risk based regulation. It is important to learn from the ESF to help inform what regulation will look like in the sector in the future, because as acknowledged by Matt Hancock in his speech on the future of healthcare, regulation is unlikely to go back to the way it was before March 2020. A key learning point is the weight that was placed on whistleblowing. Whilst the CQC were more likely to physically inspect those services that had a poor regulatory history, or as a result of the ESF conversations were considered to be struggling, 50% of CQC’s physical inspections during COVID-19 were informed by whistleblowers and information from the public. This means that not only should providers pay close attention to messages that come out of the CQC’s #Becauseweallcare and Give Feedback on Care campaigns but also, providers need to have robust whistleblowing procedures in place, so that staff feel assured that their concerns will be addressed appropriately internally without the need for them to bypass their employer and complain directly to the CQC. Furthermore, as COVID-19 is not yet a thing of the past, it is important to note the areas that were of more concern in whistleblowing complaints: infection control, social distancing and lack of PPE.
The CQC is now moving away from the ESF and is increasing the number of physical inspections. The CQC is currently focussing on Infection Prevention and Control/Good Standard inspections. The information that the CQC has provided on these inspections has been sparse and quite confusing. Back in July 2020, Debbie Ivanova, Deputy Chief Inspector of Adult Social Care, explained that these inspections are focussed on identifying best practice by learning from a sample of 300 care homes where data indicates that they have managed infection prevention control well. The services inspected include those that have had a COVID-19 outbreak as well as those that have remained COVID-19 free. These Infection Prevention and Control inspections were to take place in August 2020 and will be reported on in the CQC’s fourth Insight report due to be published in September 2020. According to Debbie Ivanova, these announced inspections were focussed on identifying ‘good practice’, however, if sufficient poor practice was identified, the inspection could switch to a routine/responsive inspection. Furthermore, whilst the inspection would not affect the providers existing rating, a report of the inspection would be published, and there has been no mention of providers having an opportunity to challenge the inspection through the usual written representations process. Of course, this cannot be right, and providers must be provided with an opportunity to make factual accuracy comments. To further confuse matters, the Infection Prevention and Control inspection tool solely focuses on ‘what good looks like’ which makes sense if the tool is to solely be used for this 300 sample of Infection Prevention and Control/Good Standard inspections, however, the tool will also be used for all types of inspections of care homes where a site visit is made.
On the subject of infection prevention and control, it is worth noting that at the time of writing this article, CQC inspectors have been assessed as not meeting the criteria for weekly asymptomatic testing on the basis that inspectors are not required to undertake ‘hands on’ closer personal contact with people. Naturally, this has caused concern amongst providers and unions. In an update to providers last month, the CQC said that it would be carrying out risk assessments ahead of each inspection as well as providing inspectors with necessary training and PPE. As has been seen throughout the pandemic, this is another example of unnecessary risk taking. Some providers have taken matters into their own hands by sending policies and guidance to inspectors in advance of inspections, some attempting to control how the inspection is carried out by requesting all inspections be announced, limiting the number of inspectors on site and requesting a negative COVID-19 test before inspections. The CQC has said that this is “unacceptable”. What providers want to avoid is the CQC going as far as alleging obstruction to entry and inspection under Section 63(7) of the Health and Social Care Act 2008, which carries a penalty of £300. Providers may want to take a different approach, one of explaining to inspectors the COVID-19 measures in place for visitors and taking note of those measures that inspectors do or do not adhere to, in order to refute allegations of poor infection prevention and control on the part of the provider.
The CQC’s Provider Collaboration Reviews (PCR) indicate the CQC’s likely focus in the future on collaboration and innovation. The PCRs are a result of the pandemic highlighting the importance of collaboration and partnership across the health and care system. The PCRs will share examples of where collaboration has worked well across the system, helping to drive improvements and prepare for future pressures on local care systems. The first of these reviews looked at the interface between health and adult social care for people aged over 65. A report on the first series of reviews will be included in CQC’s September Insight report and the State of Care report due to be published in October 2020. Providers may have embarked on collaboration and innovation during the pandemic. Now might be a good time to take stock and assess what has gone well and what projects, initiatives and/or systems should be maintained for the future and showcase these in any conversations with or visits from the CQC.
We are now entering the CQC’s ‘next’ stage of regulation which has been called the Transitional Regulatory Approach. The CQC has explained that this stage is a development of the Emergency Support Framework. It looks like this Transitional Regulatory Approach will be used from September 2020 until the CQC’s new Strategy is published in May 2021. It will involve remote assessment of data and ‘crossing the threshold’. In fact, whilst the CQC will unlikely be returning to its published frequency of inspections, the CQC aims to be in touch with all providers before March 2021, whether through the Emergency Support Framework, the Infection Prevention and Control inspection or the Transitional Regulatory Approach.
The new Transitional Regulatory Approach will apparently be supportive, similar to the Emergency Support Framework, but will capture a much broader range of topics as part of the monitoring process. Areas of focus will include safety, access and leadership. However, the CQC has not embellished any further or provided any details on what this means in practice. What does appear to be the case is that unlike the ESF where the CQC was unlikely to visit unless there was a serious risk, CQC will very likely be in contact, if not through an inspection but by other means by summer 2021 and that providers should be looking wider than just infection prevention and control to areas such as health and safety, staffing and governance.
In an article for the HSJ, Ian Treholm said that the approach during this “transition” period will act as a “prototype” for “intelligence-led” regulation, ultimately making inspections “less of an event” for providers whereby the CQC minimise the amount of work done on-site. Interestingly, Ian Treholm also stated that the CQC will not be asking for the level of pre-work that they have done traditionally, even if the provider is Requires Improvement or Inadequate. What can be gleaned from this is that providers, like never before, need to be constantly on their guard. Less pre-work could mean less indication of areas that the CQC are focused on within a service. And “intelligence-led” could mean “Big Brother is Watching You”, which probably has always been the case, but at least providers knew that they were really being watched during an inspection. Ridouts has previously considered the potential pitfalls of CQC moving to an intelligence led approach and how this might negatively impact providers.
Since the suspension of inspections, any inspection carried out by the CQC has been based on risk. The CQC will be shifting to inspecting based on improvement or deterioration. It looks as though the CQC will also be inspecting and re-rating services where it has been identified through intelligence and planning that a service is becoming Inadequate, where there have been significant improvements to warrant a move from Inadequate or where a service does not have a rating and the CQC has concerns about quality and safety. Essentially, where it is in the public interest to re-rate because the current rating and report are misleading and do not reflect the actual quality and safety of the service, especially where the current published rating doesn’t reflect newly evidenced risks to people using services, the CQC will be looking to inspect as soon as possible. Of course, this is potentially one sided and determined by CQC and not the providers who feel that their ratings were either never indicative of the service provided or are no longer indicative. Providers should consider what evidence they can provide to the CQC to prompt a new inspection.
The CQC plans to launch its new strategy in May 2021 which will be consulted on in January 2021.
The strategy will be made up of four main themes:
Meeting people’s needs – the CQC would like to transform the way it collects and understands the experiences of people and local communities who face inequalities, to make sure services meet their needs.
Promoting safe care for people – the CQC wants to lead the establishment of a universal safety culture across health and social care.
Smarter regulation – the CQC wants to gather and use information differently, with the aim of collecting information only once.
Driving and supporting improvement – using lessons learned through its State of Care report, the CQC wants to do more to drive improvements in the quality of care.
Based on comments made by Ian Treholm recently, regulation of the sector in the future will be intelligence driven. The CQC has set future goals which include increased use of technology, such as
A new digital platform for all Provider engagement
Mobile apps for regulatory activities supporting inspection and enforcement
Digital engagement with NCSC (the CQC’s contact centre)
Artificial Intelligence in their risk and intelligence services.
According to Ian Treholm the CQC’s ambition is to “never go back to having the big reports that we have traditionally produced”. It is difficult to say at this point whether this is welcomed change. Despite the current lengthy reports that are produced by the CQC, providers are often left with an incomplete picture of the evidence reviewed and judgements drawn at inspection. Reducing the length of inspection reports is likely to increase such occurrences. Providers will need to be ever more vigilant in ensuring that publications are a true reflection of the quality of service and care that they provide and ever more ready to challenge false or misleading judgements and decisions made by the CQC.
Ridouts Professional Services will be hosting a series of free webinars this autumn covering various issues affecting the Adult Social Care sector. The first in this series of webinars is on this topic, and attendees will have an opportunity to ask our lawyers for their guidance and advice. To book your place please visit: https://www.ridout-law.com/webinars/