Posted by Mei-Ling Huang, Partner
CQC consultation on regulation – what does it mean for care providers?
At the start of the year, CQC launched a consultation, entitled “Consultation on changes for flexible regulation”, which is focused on health and social care providers. So what are the implications?
It is already clear that the consultation merits care providers’ attention. The deadline for submitting views is 5pm on 23 March. So to help you understand here is a brief overview, along with a summary of the potential impact.
Consultation on changes for flexible regulation
The consultation is focused on how CQC will inspect, assess quality, rate services and decide whether to take enforcement action. This comes in two parts: part 1, where CQC describes how it will change its inspection, assessment and ratings practices, and part 2, where it describes its proposed changes to consulting with providers about future changes to the way CQC works.
Part 1 explains changes that CQC is proposing in relation to the regulation of health and social care. There are two elements that will concern care providers.
First, CQC wants to move away from using comprehensive inspections as the main way of assessing quality and awarding ratings. It wants to use other sources of information to provide the basis for assessments and changes to ratings. This appears to mean that a rating could change without CQC crossing the threshold. It will continue to inspect where it receives information that poses significant risks to people’s safety. It says that it will work in a more targeted and proportionate way.
Second, CQC wants to update ratings and assessments of services more frequently and won’t return to the usual inspection frequencies. Changes in ratings and assessments may instead be based on people’s feedback and experiences of care, a combination of targeted inspections, national and local data and insight from other organisations and partners, and from CQC’s relationships with care services and their own self-assurance and accreditation. It has said that these proposals will sit alongside further changes in how they assess quality and that further information will be provided later this year.
We have some concerns about what CQC is proposing to do
When CQC say it wants to work in a “more targeted and proportionate way” it is not clear what sort of proportionately they are talking about. The implication seems to be that its judgements will be more proportionate (a good thing for providers) but it is equally possible that it means they will do less work before changing a rating (a good thing for CQC).
Exactly what information is CQC proposing to rely on as the basis for changing a rating? Inspections and enforcement action already rely on what people tell CQC about a service. Issues of credibility make this area rife with difficulty and can cause assessments to be based on unreliable evidence. It is sometimes the case that people using services do not have the mental capacity to understand the question asked or respond to it appropriately. In one case, a person with dementia told the inspector that some valuables had been taken from her. The home’s inventory did not include any valuables and it is likely that she was misremembering what she had brought with her.
It takes a lot of work to unpick an issue such as this. Disgruntled staff and former staff may also have ulterior motives when providing feedback to CQC, taking retaliatory action in the form of whistleblowing. If CQC does not have any way to gauge the credibility of the person blowing the whistle, then the service bears the brunt of the negative inferences drawn.
Also, who are the partners and other organisations from whom CQC is proposing to collect data? Local authorities and CCGs are likely to be sources, but who else is CQC planning to talk to and what standing, qualifications and methodologies do those organisations have to collect information? How will CQC know if that evidence is reliable?
A meaningful right of reply
Providers must be afforded a meaningful right of reply to evidence gathered from third parties and CQC must be careful to assess credibility if such information is to be relied upon even more heavily than before. If inspectors have no way to get a feel for the service more holistically, this is likely to result in an evidential playing field that is tilted even further against providers. In short, the quality of the evidence CQC relies on really matters but CQC have provided little detail about who they will gather evidence from, how they will go about it and how they will assess its reliability.
Part 2 of the second consultation is very brief but of critical importance. Here, CQC propose to have shorter consultations about future changes to the way it inspects and regulates. It accepts that it is statutorily obliged to consult with providers about proposed changes but say they are currently going above and beyond those statutory requirements. CQC now propose to provide “fewer large-scale formal consultations, but more on-going opportunities to contribute as we’ll engage in different ways”. It intends to use alternative ways of gathering insights, such as the use of focus groups and their Citizen Lab on-line platform.
In public law, there is a basic tenet that consultations must be provide sufficient information to permit those consulted to provide a meaningful response. CQC seem to want to make consultations more casual, which is concerning as it may result in an even greater imbalance of power between the regulator and those it regulates. If CQC is given more power to mark their own homework on consultations then we might see future consultations that are more convenient for CQC but less informative for providers.
Have your say
It is important that providers respond to the consultation and air any concerns that they may have formally. It is also important to engage with your contacts at CQC on a one-to-one and group basis (for example, through care associations) and make any concerns known on a personal level. Third wave or not, this is your chance to have your say.
For more information contact Mei, or a member from our specialist Health and Social Care Sector.
0800 051 8058 Email us
Health & Social Care
Part of your trusted team, on hand to provide expert advice