CQC - More flexing of muscles ahead?

Published 15 agosto 2019

What does the CQC’s recently published annual report tell us about the direction of travel for health and social care regulation?

Key ‘take away’ points include:

• Some improvements in overall CQC ratings across all sectors in the last year, although the general picture remains very similar
• More CQC enforcement activity - most notably, a significant increase in criminal enforcement actions. Outside the report, we note the significant uplift in conditions imposed and breaches alleged, with tolerance levels in the mental health space having taken a dramatic downturn since May 2019
• Strong focus on technology - including developing the CQC’s regulatory approach to focus on good technological innovation amongst providers

We look at what can be gleaned from the report about where CQC regulation is at and where it is headed below.

WHAT ARE THE HEADLINES FOR PROVIDERS?

Targeted inspections?

The CQC carried out 17,000 inspections across all sectors in 2018/19, continuing to direct its energies towards the areas of greatest perceived risk.

A key plank of this targeted approach is for the CQC to carry out re-inspections within the maximum timeframes it has now set itself, in accordance with the provider’s previous rating.  It seems these target timeframes were met in 99% of NHS Trust core service re-inspections in 2018/19, but only 62% of adult social care re-inspections (although that figure went up to 86% for re-inspections within 6 months of an ‘inadequate’ rating).  The CQC is aiming to improve on that figure this year, meaning that adult social care providers could see their re-inspections coming round more quickly.  The report makes no specific comment on target timescales for re-inspection of independent health provision against risk.

The CQC reports also having made good progress this year in developing new systems for collecting/analysing information from a wide range of sources to help support its ‘intelligence-driven’ approach to regulation, with 896 inspections having been triggered this year as a direct result of information received by the CQC from people using services, families, stakeholders, staff at provider organisations etc. Continuing to improve how it collects and analyses such information remains a priority for the CQC, which will no doubt be welcome from a provider perspective, where frustration remains around the interpretation and triangulation of significant amounts of data through the PIR and trigger inspection processes. 

Improving picture?

The good news is that 2018/19 saw a slight improvement in the quality of care across all sectors and ratings, as assessed by the CQC, compared with the previous year.  

In adult social care, the overall ratings for 2018/19 were: 3% outstanding (up 1% on the previous year), 80% good (up 1%), 15% requires improvement (down 2%) and 1% inadequate (down 1%).

In hospitals (including NHS and independent sector), the overall ratings for the same period were: 8% outstanding (up 1% on the previous year), 66% good (up 4%), 24% requires improvement (down 4%) and 2% inadequate (unchanged from the previous year).

Whilst it is difficult to read too much into these figures, the overall direction of travel seems to suggest the greatest potential ‘improvement’ in ratings is for providers to achieve a ‘good’ rating, with relative lack of movement at the top and bottom ends of the ratings scale. 

More enforcement activity

Perhaps the most striking shift in 2018/19 was the CQC’s growing willingness to flex its enforcement muscles by pursuing criminal actions against providers.

This is reflected in the number of CQC criminal enforcement actions (including fixed penalty notices, simple cautions and prosecutions) shooting up by almost a third to 211, compared with 159 the previous year.

Civil enforcement activity was also up (906 civil enforcement actions in 2018/19, up from 781), although slightly fewer warning notices were issued compared with the previous year.

This ramping-up of enforcement activity is in line with the CQC’s ongoing commitment to use its powers to the full, particularly where breaches of regulations have caused or risk causing avoidable harm.  As the report says, this is part of a ‘continuing trend over the last two years’, with the CQC crediting its case management tracking system with helping strengthen its criminal enforcement activity. This might sit uncomfortably with the above idea that, overall, a greater number of providers have been rated ‘good’ or higher, however this is not inconsistent, as for those who are rated ‘requires improvement’ or ‘inadequate’, it appears that sanctions are becoming more frequent. The CQC ‘bite’ is thus being delivered as promised.

The CQC also reports having got tougher on registration applications in 2018/19, with registration Notices of Proposal - most often notices to refuse registration, e.g. where the quality of care is not good enough - up by over a quarter (564 compared with 445 the previous year).

Well-led

With the ‘well-led’ key question now front and centre of the CQC regulatory approach, the CQC says it has now ‘embedded’ its regular (in principle, at least annual) inspections of NHS Trust leadership, management and culture, with 139 inspections of well-led at Trust-wide level having taken place in 2018/19.  The impact on aggregated ratings can clearly be seen - both upswings and down, against aggregation of past and current ratings across complex services and locations.

The report is, however, noticeably quiet about the current state of play on proposals put forward some time ago in the CQC’s ‘Next Phase’ consultations in relation to ‘well-led’ for independent sector providers.  We are keenly aware of triggered provider level inspections in the independent sector, and pilots for the well-led reviews, but there remains no reported detail on the strategic next step for launching well-led reviews for the independent sector as part of the annual cycle as for the NHS.  The report also remains silent on the potential extension of the scope of CQC registration to encompass ‘Top Co’ organisations with direction and control over the quality/safety of services, and we await further announcements on those changes.

WHAT NEXT?

We are likely to see the CQC’s 2018/19 focus on effective targeting of inspections and greater use of enforcement powers - particularly its criminal enforcement powers - continuing as the current year progresses. In the last 6 months, we have seen increasing use of s.31 emergency powers (across NHS and independent sector), coupled with the imposition of conditions that, in the independent sector, can cripple the ability to continue a commercially viable operation (in whole or in part).  We can also see an increase in appeals to Notices of Decision, as providers seek time to remedy the issues identified by the CQC inspectors, where the lens through which they inspect has taken on a different hue recently.

Finally, the report repeatedly highlights technological innovation as a key focus for the CQC going forward, both in terms of strengthening its own digital capability (e.g. the CQC’s plans for 2019/20 include redesigning its online registration service and launching a revamped online service for people who use services to share their experiences of care), but also developing its regulatory approach to enable inspection teams to identify, assess and encourage good technological innovation amongst providers.   This will be reflected, for example, in the CQC’s work with other regulators to set out a clear pathway for the regulation of ‘artificial intelligence’ products, which are likely to play an increasingly pivotal role in the provision of care as we look to the future.

HOW WE CAN HELP

Our experienced team of healthcare regulatory lawyers work with organisations across the independent and public sector to provide advice and support on the full range of issues that CQC regulation brings with it, including:

• Strategic advice to Boards on the changing regulatory landscape;

• 'Well-led' assessment support, including advice/mock interviews for Board members and senior managers;

• Pre-inspection compliance support - e.g. Head Office pre-inspection reports on key risk areas;

• Support with factual accuracy check responses to draft inspection reports, including working with in-house teams on which issues to include and how best to evidence them;

• Advice on process flaws which may open the way to judicial review challenge if the factual accuracy process does not resolve the provider’s concerns;

• Representations about Warning Notices, Notices of Proposal and appeals to the First Tier Tribunal about Notices of Decision;

• Advice and support during CQC investigations, including preparing/accompanying Registered Managers and/or nominated individuals at interviews under caution for regulatory breach and defence of criminal prosecutions if charges are brought.