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LEGAL VIEW: What could CQC consultation on ‘flexible regulation’ mean for providers?

Laura Paton

Laura Paton, senior associate at Ridouts, looks at what the CQC’s consultation on ‘Changes for Flexible Regulation’ could mean for providers.

January 2021 saw the release of two important consultation documents by the CQC. The first was its consultation on its strategy from 2021 and beyond which has now closed.

The second, and the subject of this article, is its consultation ‘Changes for Flexible Regulation’ which is currently live and open for responses.

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Both documents set out CQC’s proposals on specific changes that will enable it to deal with ongoing challenges from the pandemic and to move towards its ambition “to be a more dynamic, proportionate and flexible regulator”.

CQC proposes significant changes in how it regulates, notably moving away from a scheduled frequency of comprehensive inspections linked to ratings.

Notably, there is nothing in either consultation about the rights of registered providers to challenge facts, judgements and ratings under the proposed new performance assessment framework or whether the proposed changes will also mean changes to the way in which providers can currently challenge inaccurate or disproportionate ratings and conclusions.

As with numerous consultation proposals from CQC in the past there is a strong focus on use of technology, shared data and feedback, however, the precise detail of how this will work in practice is lacking from the documents.

Changes for Flexible Regulation

In this consultation, in recognition of its need to be a more flexible regulator in order to manage risk and uncertainty, CQC sets out that it wants to move away from a rigid system of periodic inspections at set-intervals to a system that allows CQC to update its ratings “more often in a simpler, responsive way for the public, providers and stakeholders”. One of the outcomes sought is to make ratings easier to understand.

Broadly, the proposals in ‘Changes for Flexible Regulation’ are in two parts. Part one covers the following plans:

  1. To assess quality and rate services by using a wider range of regulatory approaches – not just on-site or comprehensive inspections;
  2. Rather than follow a fixed schedule of inspections, CQC propose to move to a more flexible, risk based approach for how often they assess and rate providers;
  3. To stop providing separate and distinct ratings for the six population groups when rating GP practices; and
  4. To remove aggregation for NHS Trust Level ratings and replace with a single trust-level rating, based on a development of its current assessment of the well-led key question for a trust.

Part Two contain the CQC’s proposals to change the way it engages and consults with stakeholders in the future.

What will this look like in practice?

Inspections

Whilst recognising that site visits (inspections) will remain an important part of how CQC assesses the quality of services, the consultation sets out that these are not the only ways for CQC to assess quality and update ratings.

CQC still propose to carry out on-site inspection visits where it has information about significant risks to people’s safety and to ensure protection of the rights of vulnerable people, but this document sets out that it considers that there is a lot of information available which can be gathered without a site visit.

Similarly to the consultation on its strategy for 2021 and beyond, this consultation has increased focus on how digital technology can be used to inform assessments of quality of services although precisely how this would operate for each sector is not specified. CQC simply state that they intend to use wider sources of evidence, tools and techniques to assess quality.

CQC also propose to use targeted inspections more frequently. At present targeted inspections cannot change ratings (only focused and comprehensive can), however, this document suggests that position is likely to change

It also appears that there is to be a shift away from the Provider Information Requests (PIR’s) to assist in making assessment activity more targeted and focussed. Although again, the detail of how this will work in practice is not set out. CQC propose that “If we need to ask health and care providers for information before and inspection, the requests will be targeted and proportionate”.

Whilst a move away from onerous PIR’s is likely to be welcomed, providers will want to ensure they will have the opportunity to provide information about the quality of the service they are providing, particularly if an on- site visit is not taking place and ratings judgments are being made purely on the basis of data.

Ratings

CQC want a less rigid approach that allows them to update ratings more often and they have stated they do not wish to return to using the inspection frequencies published on its website or the types of large inspections that are associated with that approach.

CQC want to stop describing frequency of assessment in terms of ‘inspection’ and instead by how often it ‘reviews quality and updates ratings’.

Its proposal is to use the best available information about quality in a service to review ratings more often. This will include a better understanding of people’s feedback and experiences of care, and using a combination of targeted inspections, national and local data and insight from other organisations and partners, and from its relationships with care services and providers own self-assurance and accreditation.

Again, the precise detail of how all this will work for each sector is yet to be worked out. CQC recognise that for all these changes to happen they will need to further develop their assessment frameworks and publish information to explain how often they will update ratings in a consistent and proportionate way.

They say that this piece of work is to sit alongside wider changes proposed in its new strategy later in the year and we wait to hear further on the detail of this.

Clearly there will be benefits to providers from a more flexible approach to inspections and changing ratings, especially for those services who consider that they have improved and currently have to wait 12 or even 18 months for the next inspection under the current system to demonstrate this and have a shot at upgrading their ratings. There are also risks to the proposed new approach of inspections based more on data and feedback. It is not clear which data will be used from other stakeholders and how it will be used. It is also not clear how this evidence will be triangulated and tested to ensure it accurately reflects the position at a service.

Whilst the renewed focus on people’s feedback is to be expected in terms of CQC’s purpose and overarching objectives, any new system must ensure that this type of feedback evidence, which is by its nature is subjective, is not viewed in isolation and must be triangulated with the best available evidence at the service to ensure that CQC reaches appropriate and proportionate judgments.

There must also remain appropriate checks and balances which allow the provider the opportunity to respond to any factual inaccuracies and incorrect or disproportionate ratings before any new rating is published. Currently the Factual Accuracy Process is the mechanism by which providers can challenge ratings and judgments and disproportionate judgments and is something we assist providers with on a regular basis.

It is not clear whether the proposed changes to a flexible system of upgrading (and downgrading) ratings will also lead to changes in the way providers can respond to any changes that they do not consider to be accurate. This is an absolutely vital aspect of a fair and proportionate system. Ratings are vital to the success and viability of providers and it is important that any new regulatory systems are fair and proportionate for all concerned.

Changes to Consultation

Section 46 of the Health and Social Care Act 2008 requires CQC to publish and consult on a statement that explains how it will assess the performance of health and care service providers.

CQC considers that its current approach to consulting on any changes in the way it conducts performance assessment, which is typically via detailed documents over 12 month periods, goes beyond the requirements of the Act and that it limits its ability to be as dynamic and responsive as it wants to be.

The proposal is a shift in approach away from large-scale formal consultations to more ‘targeted conversations’, for example, through focus groups and its online CitizenLab platform.

Whilst there may be something to be said for more dynamic ways of obtaining the views of stakeholders, CQC must be careful to ensure its new proposals for consultation are comprehensive enough to meet its legal obligations under the Act and also inclusive and accessible enough to ensure that the appropriate range of views of relevant stakeholders are gathered and heard. Anything less could pave the way to rushed, ill-informed policy changes that could ultimately be subject to challenge if the regulator has not met its legal duty to properly consult.

Conclusion

Clearly more detail is required on all of the changes to fully assess their practical significance. However, these proposals mark potentially significant changes to the way in which CQC regulates and rates. At this stage these changes are only proposals and owing to their potential significance Providers in all sectors will want to have their say. Providers have until 5pm on Tuesday 23 March 2021 to contribute their views. The consultation documents and details of how to respond, can be accessed here.

If you require assistance or advice in relation to challenging CQC draft inspection reports or challenging other CQC enforcement action, our specialist solicitors can help. Please contact Ridouts Professional Services Plc using the email address info@ridout-law.com or by calling 0207 317 0340.

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