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A lawyers’ perspective on health and social care regulation – where we are now and where we need to go

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CQC carries out an essential public function often in the face of considerable public scrutiny and political pressure. At the same time, it has considerable powers to protect the public which the Police would love to have. As a regulatory lawyer who in the past has acted for the national regulators, I want to see a healthy and effective system of regulation, balanced by proper accountability and transparency. The following proposals are offered in a positive, not critical spirit, aimed at improving health and social care regulation in England so it is fit for the challenging and changing times we live in.

 

I believe that CQC should address the following issues urgently:

 

  1. Refocus on compliance, introducing an Adequate or Satisfactory rating at the front of reports which denotes compliance with regulations. This used to exist under the old star rating system operated by the Commission for Social Care Inspection. The current rating of ‘Requires improvement” covers compliance and non-compliance which is nonsensical and misleading to the public. It also presents a poor image of the industry as a whole.
  2. Give clear guidance to inspectors on when to describe something as a breach of regulation. A concern should only be described as a breach if there has been a full legal and evidential review which concludes there has been a breach and that there is robust evidence to prove it. Too often breaches are based on isolated issues that relate to individual failures, not systemic weaknesses. Often there is a failure to put things in context. CQC should remind itself that it is a systems regulator charged with taking a risk-based approach to regulation. As part of this, it should acknowledge that services operate within a complex and fragmented system involving multiple agencies and professionals. Too often it is the care home or domiciliary care agency that gets all the blame when the failure lies elsewhere in the system or where there has been a collective failure. The current model of regulation fails to recognise this, focusing instead on the individual service being inspected. Reality is far more nuanced, complex and interconnected. Regulation needs to adapt to capture the real world.
  3. Be clear to the public and providers that inspection does not stop at the end of the site visit but continues down to publication of the report which will be several months down the line by which time the service in question may have changed significantly in terms of quality and standards. If new matters arise, whether positive or negative, they should be included since otherwise the report may give a false positive or false negative. Inspection is a video of the service down to publication, not a snapshot of the service at the time of the visit only (see the recommendation in the 14 Colne Road report on this point which CQC says it accepts but has not implemented).
  4. Respond to the operational burdens faced by inspectors in addressing factual accuracy challenges from providers. This requires a renewed focus on the quality of inspections and report writing. From the 14 Colne Road inquiry report (June 2018) there is a real sense that inspectors feel under siege from what they describe as aggressive providers and lawyers putting in threatening challenges to draft inspection reports. Providers and their lawyers should never be aggressive but it is entirely reasonable for them to be assertive in putting forward their objections to reports. CQC needs to listen to what provides are saying to them about the quality of inspections and learn from why challenges are occurring in the numbers they are. Inspectors are having to do twice the work to review and rectify reports rather than spend time of inspections where it is needed most.
  5. Admit to failings early and disclose underlying inspection documentation to improve regulation rather than hide behind arguments that disclosure is too onerous and burdensome. There should be a presumption in favour of disclosure where a provider raises a prima facie case of regulatory failure on inspection. This will promote trust and feed into a positive cycle of learning and improvement. It is all the more important now that the new style inspection reports are so brief – little more than a list of bullet points. Judgements are being made about services on the basis of evidence and factors that have not been disclosed to the provider, infringing principles of natural justice.
  6. Publish the names of inspectors on inspection reports, as was the case previously, to promote accountability, openness and consistency.
  7. Listen and learn from mistakes, just as providers have to do when running their services. All too often, I come across situations where inspectors seek to defend their opinions even when confronted with clear evidence to the contrary.
  8. Carry out proper independent reviews of inspection reports after the factual accuracy stage, if the provider can show on the basis of objective evidence that aspects of the report are demonstrably wrong or misleading, in line with the High Court case of SSP v CQC [2016]. In that case, Mrs Justice Andrews stated:

 

“…there is an obligation on the CQC to carry out an independent review of a decision made in response to comments in the Factual Accuracy Comments Log, on a request to do so by the inspected entity, if the ground of complaint is that a fact-finding maintained in the draft report is demonstrably wrong or misleading.”

 

By an independent review, the judge meant someone with no prior involvement in the regulation of the service in question carrying it out. CQC tries to argue that the lead inspector’s line manager is independent, provided he or she did not go on the inspection. That is not what Mrs Justice Andrews envisaged: an additional procedural layer of review, independent of the inspection team and available after CQC’s response to the provider’s factual accuracy comments.

 

Conclusion

 

Tellingly, I raised the majority of the above issues last summer in an article I wrote on LinkedIn. I argued that if the above matters were attended to urgently, there was a real prospect that regulation could really turn a corner and become world beating in terms of excellence and consistency. If not, there was a genuine risk that a spiral of decline would set in with more and more legal and provider challenges, diverting resources away from CQC’s  essential regulatory functions. Sadly, 10 months on I am still waiting for signs that the above issues are being taken forward seriously. But I’m an optimist and I continue to hope for change. After all I am not asking for utopia, just a set of simple changes of approach that will transform regulation as we know it.

 

Neil Grant

Partner

Gordons Partnership LLP

16 May 2019

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