Inquests are investigations carried out by a Coroner (in rare cases with a jury) to answer four questions:  who the deceased was, when they died, where they died and how they came by their death.  Inquests are required whenever a coroner has a reason to believe that the death was violent or unnatural, the cause of death is unknown, or the deceased died while in custody or otherwise in state detention (the latter no longer applies in respect of detention under DoLS).

 

The hearing

 

The Coroner will start the hearing by explaining the purpose of an inquest as set out above. They will usually say that the coroner’s court is not a court of blame and that they are not permitted to make determinations of civil liability or criminal liability in respect of any named individual.

 

The Coroner finds answers to the questions by calling evidence.  Some of that may be documents read by the coroner into the record without calling the witnesses. In some cases, all of the evidence is read and there are no live witnesses.

 

If the Coroner calls witnesses, they are first sworn in either by making an oath on a holy book or by affirming – making a promise to tell the truth but not on a religious book. It makes no difference which option the witness takes and in both cases the witness will be told what to say.

 

As an inquest is part of the Coroner’s investigation rather than a trial, the Coroner will ask questions first.  If the witness has made a statement, they will usually be permitted to refresh their memory from it if they need to.  After the Coroner asks questions, interested persons or their representatives may ask questions.  Interested Persons (often abbreviated to IPs) are people or organisations that have an interest in the case.  This can include family members and organisations that may have been involved in caring for the person such as GPs and hospitals.  CQC is sometimes made an IP by the Coroner, usually where the Coroner has concerns about the case though CQC tends not to take an active role in the case.  The Coroner has a duty to exclude any questions that are not relevant to the inquest.

 

The Conclusion

 

At the end of the hearing, the Coroner will answer the four questions and give a conclusion.  Conclusions can be ‘short form’ such as natural causes or accidental death, or a narrative explaining what happened.  If the Coroner considers that the death was contributed to by a gross failure to provide treatment to a person in a dependent person, the coroner can add that the death was contributed to by neglect.

 

If anything revealed by the Coroner’s  investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and in the coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the Coroner must report the matter to a person who the coroner believes may have power to take such action.  Such reports are often referred to as reports to prevent future deaths (often PFD for short) or regulation 28 reports.  They are routinely published on the publicly available judiciary website and sent to interested persons.

 

When to seek advice.

 

Applying the criteria above, a wide range of cases require inquests.  They can include unpredictable falls where there are no criticisms of the care provided to cases where there have been obvious failures in care, and there is a risk of enforcement by the CQC or other regulatory bodies.  Representation is certainly not indicated for every inquest.  Where the provider is clearly not at fault, and no one has any concerns with the provider, representation may not be required.

 

Consideration should be given at the earliest stage as to the risk of the particular case, and that should be kept under review.  Each case will turn on its own facts but the following are risk factors that suggest that legal representation should be considered:

 

  1. The provider is given Interested Person status by the coroner. That suggests the coroner considers that the death may be due to an act or omission of the provider, or the coroner thinks the provider has sufficient interest in the case to be granted IP status, for example because others are critical of the provider.
  2. The family have expressed concern about the care.
  3. The family or other IPs are legally represented.
  4. Press interest.
  5. There is an ongoing investigation by the police, HSE, Local Authority and/or CQC.
  6. The coroner has raised concerns about the provider previously.
  7. Conflicts of evidence.
  8. Internal and/or external investigations identify shortfalls in the care provided.
  9. Jury cases.

 

Statements

 

Coroner’s officers will usually ask for statements early on in the investigation.  If specific information is required, that should be included in the statement.  If statements are sufficiently detailed about the key issues and remedial action, that will reduce the chance that the witnesses will be called to give live evidence, and so reduce the risks and costs to the provider.  However, the Coroner has a wide discretion as to calling witnesses.  Whilst witnesses are often called despite having made detailed statements, the statements will help them when they give evidence.

 

Coroners do not have a duty to issue PFDs if they are satisfied that sufficient remedial action has already been taken by the provider.  It follows that provides should always consider including remedial action in evidence provided to the coroner.  Setting out such evidence can be a comfort to families and reassure regulators that lessons have been learnt.  However, in some cases, particularly when there are open regulatory investigations, the risks of including such information must be balanced against the risk of a PFD.

 

The Coroner may also ask for other documents such as care plans.  Deadlines should be met wherever possible.  Where deadlines are not achievable, extensions should be sought well in advance of their expiry.

 

The Coroners and Justice Act 2009 includes offences for altering or distorting evidence, and intentionally supressing, concealing, altering or destroying a relevant document (defined as a document the Coroner would want to see if they were aware of its existence).

 

Preparing for the hearing.

 

Witnesses may often be giving evidence for the first time and may not have previously attended an inquest.  They will need support to explain the process and reassure them.  If they are particularly nervous, applications can be made to the Court for special measures for example permitting them to give evidence behind a screen or remotely.  Staff are usually reassured by someone explaining the process, though caring employers will of course wish to ensure that they are offered any support.

 

Staff should be given copies of their statements.  Hearings are often months, and sometimes years, after the death, and staff will usually benefit from reminding themselves of the content of their statements and other key documents such as care plans.

 

Lawyers can help them prepare and explain the process though must not coach them or rehearse their evidence.

 

If there is or may be media interest, operators should also consider reputational risk and seek advice about a responsive statement should there be an approach from the press or broadcasters.

 

Finally, operators should consider any new learning identified by the inquest so that further remedial action can be taken if necessary.

 

 

Healthcare Counsel regularly helps health and social care providers in relation to inquests.  If you would like to discuss a particular case to help you consider whether representation would be useful, we are always happy to have an informal initial discussion.

 

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

 

Our blog posts are not legal advice.

We’ve collated everything you need to know about CQC’s new methodology in one toolkit with links to the relevant documents.  Access it here:

CQC Regulation Toolkit (2nd Edition)

The Court of Appeal has given a firm view on whether the CQC’s FAC process is procedurally fair.

 

R (on the application of Hexpress Healthcare Ltd) v Care Quality Commission[1] was an appeal against the refusal of permission for judicial review on two grounds including that the factual accuracy check (“FAC”) process was unlawful on the grounds of unfairness.

 

The CQC sent a draft report to the Claimant, an online pharmacy upon which it submitted a response in line with the CQC’s FAC process.  In accordance with the CQC’s current practice, the lead inspector completed a response which was reviewed by an inspector independent of the inspection.  The report was subsequently published (though, in fact, it was subject to further changes following the FAC process through dialogue after the judicial review claim was issued).

 

The Claimant remained dissatisfied with the report and argued that fairness required that the CQC consider its response to the CQC’s reply to its FAC submission, relying on the case of SSP[2] which appeared to require such a step.

 

At first instance, Mostyn argued that the ground of challenge was unarguable as it would be “elaborate, and time-consuming”, and “a work of supererogation”.

 

Usually, judgments relating to whether a ground is arguable may not be cited in courts in England and Wales.  In the present case, the Court of Appeal expressly stated that its judgment may be cited as it clarifies conflicting authorities on the issue.

 

The Court of Appeal noted that the declaration made by the court in SSP differed from the grounds of challenge made.  Likely as a consequence of that, none of the leading authorities on procedural fairness were cited.  Having analysed those authorities, the Court of Appeal came to the firm view that:

 

“the process adopted by the CQC of: sending Hexpress the draft report; permitting Hexpress to comment on the draft report through the FAC process; considering those comments through the lead inspector and another inspector independent of the inspection of Hexpress and making the modifications considered appropriate in the light of the FAC comments; before producing the final report; was procedurally fair.”

 

The Court of Appeal has therefore given a very clear view that the CQC does not have a duty to have a process to consider providers’ responses to CQC’s reply to providers’ FAC comments.  It held:

 

“It was for the CQC, as the statutory regulator, to decide what processes to undertake to discharge its duties of procedural fairness, and the CQC reviewed its processes in the light of the decision in SSP Health. The CQC has adopted a process of reviewing the FAC comments first by the lead inspector before having that review considered by an inspector independent of the inspection. That process should ensure that any demonstrably wrong or misleading statement is corrected. In my judgment the process undertaken by the CQC in this case was fair.”

 

What this means for providers

 

Clearly, there may still be cases where the CQC makes erroneous findings of fact, or findings of fact or judgments that are unreasonable (in the sense of being so unreasonable that no reasonable regulator could have made them).  In those cases, providers will need to respond with a pre-action protocol letter for judicial review followed by a claim for judicial review if the CQC does not agree the amendments.  All claims for judicial review must be filed promptly, and in any event not later than 3 months after the grounds to make the claim first arose, so swift action is essential.

 

As there is no automatic right to a second bite of the cherry, it is also essential that FAC comments are comprehensive, persuasive and supported by robust evidence.

 

Please get in touch with us if you need any help with draft inspection reports or any other matters relating to CQC inspections or enforcement: jlandau@healthcarecounsel.co.uk

 

[1] [2023] EWCA Civ 238

[2] R (on the application of SSP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin)

 

  • With nearly two months to go, there have already been 15 successful prosecutions by CQC this year.
  • That is the highest number of convictions by CQC  in any calendar year.
  • Only five cases involved deaths. This suggests that CQC has lowered the threshold of harm in relation to prosecutions.
  • Safety remains the main theme of prosecutions, though CQC is now also regularly prosecuting for breach of the duty of candour.
  • The fines are highly variable. Whilst not strictly applicable to CQC cases, the Definitive Sentencing Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences guides courts to determine fines according to
    • The turnover of the defendant; and
    • its culpability; and
    • harm (determined by multiplying the seriousness of the harm against the likelihood of harm).
  • In determining the culpability, sentencing courts will consider the extent to which standards were followed. Significant efforts to address risk is consistent with low culpability.  Failing to comply with standards, failing to make appropriate changes and allowing breaches to subsist over a long period are all consistent with high culpability.
  • To mitigate the risks of high fines, as well as incidents occurring in the first place, providers should accordingly be able to evidence a strong culture of compliance supported by effective systems, training and audits.
  • In addition to CQC prosecutions, one care provider was convicted of corporate manslaughter and sentenced to a fine of over £1million in relation to the death of a resident from scalding in a hot bath. There have also been prosecutions of individuals for ill-treatment and wilful neglect with both convictions and an acquittal.
Date Provider Facts Fine
8 January 2021 Five Star Homecare Leeds Ltd Unregistered domiciliary care agency. £1,500 fine, £10,380.91 costs.
2 February 2021 Freemantle Trust Failures in policies and procedures that enabled an untrained agency worker to carry out oral suctioning. £2,000 fine, £7,000 costs.
4 February 2021 St John’s Nursing Home Limited Resident death following fall from care home window with inadequate restrictor. £80,000 fine, £3,474 costs.
9 March 2021 Richmond Psychosocial Foundation International Change of care and support offered at service for people with eating disorders and mental health issues.  A resident took their life that CQC attributed to the changes. Provider: £40,000 fine, £2000 costs.

 

Manager: £3,000 fine, £10,000 costs.

23 April 2021

 

Oakdene Care Home Limited Fall from hoist leading to injuries.  Resident died in hospital a few days later.

 

£10,000 fine, £12,915.88 costs.
30 April 2021 Spire Healthcare Limited Failure to comply with duty of candour in relation to surgical procedures, leading to prolonged pain and requirement for remedial surgery. £5,000 fine, £14,984.36.
7 May 2021 Ideal Care Homes (Number One) Ltd Attack on a resident in a residential care home by another resident who had been physically aggressive frequently in the past. £140,000 fine, £14,361 costs.
18 June 2021 East Kent Hospitals University NHS Foundation Trust Failures in safe care during delivery of baby resulting in the baby’s death at 7 days. £733,000 fine.

£28,000 costs.

29 June 2021 Lanemile Limited Death caused by blocked catheter. £80,000 fine, £17,000 costs.
14 July 2021 Girl Friday Somerset Limited Unregistered domiciliary care agency. £5,000 fine, £11,141 costs.
16 July 2021 Kingfisher Domiciliary Home Care Limited Unregistered domiciliary care agency. £5,000 fine, £2,000 costs.
23 July 2021 Teignbridge House Care Home Limited Fall from window causing life-changing injuries. £21,000 fine, £12,491 costs.
2 September 2021 Pemberdeen Laser Cosmetic Surgery Clinic Limited Failing to display CQC rating. £500 fine, £4,520 costs.
17 September 2021 Unnamed. A resident was raped by another resident who had regularly displayed inappropriate verbal and physical sexualised behaviour. £363,000 fine, £12,441.28 costs.
1 October 2021 Lifeways Community Care Ltd A resident caused life-changing injuries to another resident after trapping him in a room.  Only agency staff were on duty who did not have access to the room codes to stop the attack. £460,000 fine, £35,000 costs.

 

Please contact Healthcare Counsel if you need  help with any CQC matters, or other regulatory issues:

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

 

My take on ‘Help’, the Channel 4 drama by Jack Thorne about a Covid outbreak in a care home (Spoiler alert).

It is incredibly welcome that the messages ‘care homes don’t count’ and ‘no one is coming’ were voiced through ‘Help’.  Just as important was showing how committed carers can be.  Almost without exception, the stories presented about care homes in the media are the horrors of poor care.  Why is that?  Why is the NHS always the hero, and social care the villain?  Four reasons make a significant contribution:

 

  1. We don’t want to confront aging and the unhappy challenges that will face us, particularly as they can’t be fixed. In contrast, we tell ourselves that hospitals will restore us to good health.
  2. We feel guilty for outsourcing the care of those we love. In reality, properly funded care by well-trained professionals is usually the best option for people needing care.  We think that hospital care is different as it requires doctors and other professionals.  However, caring also requires highly specialised skills deployed by staff who are called to the caring professions.
  3. Social care provision is usually operated for profit. The public seem to be suspicious of this.  They generally don’t realise that GP practices are generally profit-making businesses.
  4. Poor care makes a good story.

 

It was refreshing, then, to see a care home provider who seemed to care.  Well done, Mr Thorne, for showing how providers tried to do the right thing and help to free up beds by taking hospital discharges, only for them to bring Covid into the home.  Bravo for pointing out how they were provided with neither the tests nor the PPE that they needed to have any chance of controlling the virus.  Thank you for showing the initiative and hard work providers took in sourcing their own PPE.

 

As to the night when Sarah was alone in the care home, it is welcome that the public were given a glimpse into what the Covid crisis was really like on the ground; it was a battlefield.  In the film, Sarah had interactions with three residents that night.  The reality would have been far, far worse.  With staff shortages and no agency availability, carers may have been looking after far more residents on night shifts, many suffering or dying from Covid.

 

Thorne should be applauded, therefore, for calling out the preposterous claim that a protective ring was placed around care homes.

 

If he had wanted an appropriate final act, Thorne  may have been interested in some of my clients who, after facing the horror of outbreaks, sometimes caused by hospitals discharges, and often with no support from any other agencies (‘no one’s coming’), they then found themselves the subject of Safeguarding Adults Reviews as though it was the care homes’ fault.   You couldn’t make it up.  But then again, you don’t have to.

 

Instead, Mr Thorne wrote a fanciful final act in which Sarah abducts Tony from the care home after he is prescribed tranquilisers to prevent him from absconding.   Thorne reverts to tired tropes of providers doing the easiest thing, rather than the best thing.  On a dramatic level, it doesn’t work at all and is inconsistent with the rest of the film, its core themes and the owner’s character as established to that point.

 

Why did Thorne do it then?  See point 4 above: Thorne chose narrative over authenticity and the vital themes he was trying to portray.  He thought it would make a good story.  As well as the final act falling flat and rightly being panned by some critics, it was a wasted opportunity to laud care homes as heroes as they should be.

 

So thank you, Jack Thorne, for ‘Help’, or at least for most of it.

It is difficult to overstate the significance of Friday’s Supreme Court judgment.  The civil standard of proof will apply to all inquests in respect of all conclusions including unlawful killing.

Healthcare providers are likely to be particularly affected by this.  In cases where, previously, bereaved families would have advocated for conclusions of neglect, they will now be pushing for unlawful killing conclusions.  The elements, after all, are very similar:

 

Neglect means: Gross

 

failure to provide basic medical attention

 

that more than minimally, negligibly or trivially contributes to death.

 

Unlawful killing – Gross negligence manslaughter means:

 

Gross[1] breach of duty that contributes significantly to the death.
Unlawful killing –

Corporate Manslaughter means:

Gross breach of duty by an organisation in the way its activities are managed or organised (providing the way in which its activities are managed or organised by its senior management is a substantial element in the breach)

 

that causes or contributes to the death.

 

Until Friday, submissions in respect of unlawful deaths were very rare in Coroners’ Courts.  That will undoubtedly change.  Implications will be far-reaching and include the following:

  1. The bereaved will far more frequently seek unlawful killing conclusions.
  2. Interested persons will more frequently adopt a cut-throat approach (where each interested person seeks to avoid blame by criticising others).
  3. Given the risks, more interested persons and witnesses are likely to be represented.
  4. More employees will be represented separately from their employers.
  5. Providers will look to insurers for legal expenses cover in more cases, and insurers will take a keener interest in inquests given the risks.
  6. Inquests are likely to take longer and will be more costly.
  7. There will be pressure on investigating and prosecuting authorities to take action following conclusions of unlawful killing.
  8. Witnesses are much more likely to be guarded in their evidence, potentially to the detriment of effective investigations.
  9. There is bound to be a flurry of judicial reviews challenging the decision of whether to leave the conclusion to juries.

Healthcare providers would be well-advised to be more cautious about inquests and to seek legal advice at an early stage.  Providers will be in a very difficult position if they turn up to court unrepresented against a legally represented family seeking an unlawful killing conclusion.

[1] Does gross always means the same thing though? In the context of gross negligence manslaughter and corporate manslaughter, ‘gross’ means ‘so bad in all the circumstances as to amount to a criminal act or omission’.  That does not apply to the inquest conclusion of neglect as it is not a criminal offence.  Coroners and juries will therefore have to interpret the same word in two different ways.

 

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

https://www.healthcarecounsel.co.uk/

CQC has sent me its internal guidance on its transitional inspection framework under the Freedom of Information Act.  It is essential reading for those concerned with regulatory compliance of health and social care services.  I attach them below.

There is a guidance document that applies to all services – ‘Inspection guidance for Transitional Monitoring Activity’ – supplemented by 6 service specific guidance documents, one each for, Independent Hospitals (Dialysis Services), Independent Services for those with Learning Disabilities and/or Autism, Independent Ambulance Services, Adult Social Care, Primary Medical Services and NHS Trust level (urgent and emergency care services).  CQC says others will follow.

Of great practical use, the documents set out not only the questions that CQC will be asking on TMA calls, but also the sources of evidence inspectors may wish to look at to obtain supporting evidence.  That will help managers to prepare for the calls.

The disclosed documents provide a far more detailed picture of the TMA (a term new to me).  Details include:

  • Inspectors have a TMA app that includes all the services in their portfolio.
  • The services are prioritised automatically based on previous ratings and other (unspecified) data held by CQC. This is a new feature.  Such automation of regulatory decisions raises questions about fairness as providers will not have access to the underlying data or the opportunity to comment on them.
  • Inspectors may obtain evidence from a variety of sources before the TMA call. That includes:
    • Local Authority/other stakeholder feedback
    • Last inspection/registration report
    • Feedback from people using the service and/or people who support them
    • Feedback from staff
    • Evidence of how the provider gathers and acts upon the views and experiences of people using the service.
  • There is a particular emphasis on obtaining people’s experience of care. If that cannot be obtained reliably, CQC will consider an inspection even if no risk has been identified.  Providers may, therefore, wish to consider what evidence about service users’ experience they can obtain and make available in the event of a call.
  • Inspectors are also guided to consider closed cultures.
  • The TMA call will be on Teams or by phone.
  • The guidance discourages recording of calls but does not prohibit providers from doing so. Indeed, paragraph 14.3 of the Inspection Guidance provides a range of options to inspectors should providers wish to record the calls.
  • As above, the questions the inspectors will ask are set out in the service specific documents.
  • CQC expects requested evidence to be available by screen sharing during the call or otherwise within 24 hours. Inspectors have discretion to accept documents beyond that but no guidance is provided on how to exercise that power.
  • The inspector will give a risk score between 1 and 5 for each KLOE. 1 is very high, and 5 is very low.
  • Risk is based on level of harm (major, moderate, minor, disproportionate restrictions of liberty) and probability of harm (harm has occurred, probably, possible).
  • Usually, further regulatory action will only be considered if a service is scored 1 or 2 in any KLOE.
  • There is an exception in respect of cases where 3 is awarded but moderate harm or disproportionate restrictions of liberty or loss of human rights is possible. In such cases, inspectors will use their judgement as to whether to the TMA outcome is changed and a management review meeting (MRM) will be held to discuss a proportionate response.
  • Adult Social Care and PMS services will receive a summary record if there is to be further regulatory action. Hospitals may do so in time.
  • TMA calls are not inspections and will not result in a change of rating.
  • This means that, as anticipated, services that were rated as requires improvement will not be inspected if CQC is content with the level of risk following the TMA call and so their ratings will not change.
  • Scores of 1 require a MRM within 24 hours and/or alerting other stakeholders such as the police and safeguarding.
  • Scores of 2 will require a MRM within 2 working days. Services where a 3 was awarded but CQC considers that regulatory action is needed will be subject to a MRM within 5 working days.
  • The MRM will decide what regulatory action is required.
  • TMA calls are by consent. Any refusal to engage will be considered at a MRM.  I think ordinarily that will result in an inspection, though it could lead to a statutory request for information.

Please let me know your experiences of TMA calls.  Are they fair?  Are they a reliable way of assessing risk?

 

Jonathan Landau

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

 

06 20201005 Inspector guidance for Transitional Monitoring Activity CQC IAT 2021 0419 REDACTED

07 20201007 TRA NHS Trust level urgent and emergency care conversation CQC IAT 2021 0419

05 20200925 TMA PMS guidance and prompts QC IAT 2021 0419

01 20200909 ASC Inspector Guidance Transitional Monitoring Approach CQC IAT 2021 0419

04 20200921 TRA Guidance for Independent Ambulances CQC IAT 2021 0419

03 20200921 independent dialysis Applying TRA guidance Hospitals CQC IAT 2021 0419

02 20200921 IH LD and Autism Applying TRA Guidance Hospitals CQC IAT 2021 0419

 

Since discussing CQC’s transitional framework on Wednesday’s Zoom, CQC published further information about it on Thursday, available here: https://www.cqc.org.uk/guidance-providers/how-we-inspect-regulate/transitional-monitoring-approach-what-expect

The process will be:

  1. CQC will review information from a variety of sources.
  2. CQC will hold a conversation with providers either by phone or using Microsoft Teams typically lasting 1-2 hours.
  3. CQC may ask providers to share your screen during the call to share information, or may ask providers to send encrypted documents within 24 hours.
  4. Based on the discussion and evidence, CQC will decide whether to take further action including an inspection.
  5. It will also produce, but not publish, a record of the discussion.

CQC has published the questions that will be asked during the monitoring call.  They are targeted questions drawn from the existing KLOEs and key questions. They are available here: https://www.cqc.org.uk/guidance-providers/how-we-inspect-regulate/monitoring-questions-adult-social-care-providers.  Providers would be well-advised to make sure that all managers have prepared answers to the questions and have collated supporting evidence.

We also discussed the government’s Adult Social Care Covid-19 Winter Plan.  It sets out expectations for providers as well as national and local bodies.  Providers should therefore take note of the content.  It’s available here:  https://www.gov.uk/government/publications/adult-social-care-coronavirus-covid-19-winter-plan-2020-to-2021/adult-social-care-our-covid-19-winter-plan-2020-to-2021

We also discussed the Test and Trace App. Of note, the supporting guidance states that the app should be paused when:

  1. When PPE is worn
  2. When employees are behind a Perspex or similar screen
  3. When phone are kept in a locker or communal area.

The next zoom will be on 21 October.  Email me if you’d like the dial in details: jlandau@healthcarecounsel.co.uk

Yesterday (16 September), CQC published a joint statement of Chief Inspections about the transitional inspection framework that is expected to run until next spring when the new inspection framework is due to launch.  Here are the key points, and the implications for providers.

Key points

  • Launches on 6 October 2020 for adult social care and dental services.
  • Initial focus on safety, access to services and leadership, but based on existing KLOEs.
  • Use of information for all available sources including from Provider Collaboration Reviews.
  • CQC promoting feedback using CQC’s ‘Give Feedback on Care Services’
  • On-site inspections limited to obtaining evidence that cannot be obtained by other means.
  • No return to inspections at fixed intervals.
  • Focus on providers where CQC has concerns.
  • If CQC is satisfied there is a low level of risk after conducting a desk top review of monitoring information, it will let providers know but this won’t change the rating. However, in time, CQC proposes including a short statement on the service’s page confirming the outcome.
  • If the review suggests a risk, CQC will inspect and review any or all KLOEs. However, as inspections will be targeted based on risk, not all KLOEs may be inspected meaning there will be fewer changes of ratings.

 

Implications

  • Services that are currently rated as Requires Improvement who have invested in improving quality are likely to be the big losers because the level of risk may now be too low to warrant an inspection, and so there may be long delays before the ratings are raised to Good.
  • Similarly, those services that have worked hard to raise standards to Outstanding are likely to be disappointed as it seems unlikely that CQC will inspect them soon.
  • Given that ratings are likely to be out of date in many cases, providers will need to consider novel ways of communicating improved quality to commissioners and prospective clients. Certainly the sector will need to educate commissioners that, frankly, dated ratings will not be a reliable indicator of quality.
  • If occupancy fails to recover due to an outdated rating, that should be raised with CQC as a matter that could ultimately threaten the viability of the service. CQC should be invited to inspect on that basis.
  • CQC will be leaning heavily on data from a variety of sources. It is vital for providers to identify and resolve concerns with stakeholders promptly to avoid falling into CQC’s sights.
  • If providers received positive feedback, they should signpost the CQC feedback feature (link above).
  • The sector will need to keep a close eye on whether elements of the system lead to unfairness. For example, will providers have access, and be given the opportunity to respond, to the information that CQC uses for its initial desktop review?  That information  will undoubtedly prime CQC’s view of the service, and consequently its final judgments (see my article on unconscious bias and CQC here).

The joint letter is available here. I will blog again when I receive CQC’s internal guidance.

 

If you need any help with CQC or any other healthcare regulatory matter, please get in touch:

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

 

 

28 July 2020

On 26 and 27 of February 2020, the Supreme Court heard the case of R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire.  The issue was whether the standard of proof for suicide in inquests is beyond reasonable doubt, as had been thought since at least 1984, or on the balance of probabilities, as held by the High Court and Court of Appeal in this case.

The judgement is still awaited.  Are we in for a surprise though?  Might the Supreme Court rule that not only does the civil standard apply to suicide but also to unlawful killing?

There are a number of arguments in favour of this outcome:

  1. Inquests are civil cases. The civil standard of proof is on the balance of probabilities (more likely than not) rather than the criminal standard (beyond reasonable doubt).
  2. The legislation makes no provision that the criminal standard applies to findings of unlawful killing.
  3. The argument that findings of unlawful killing (on a balance of probabilities) would prejudice criminal trials is not tenable. It is settled law that the findings of one court do not bind another.  Moreover, as Lord Reed pointed out at the hearing, the potential for difference outcomes exists in any event.  Currently, an inquest could reach a conclusion of unlawful killing, but the case could still lead to an acquittal following a criminal trial.
  4. Even if there was such inconsistency, that at best is undesirable. It does not point to what the standard is one way or the other.
  5. There are currently some occasions when a civil court has to apply the civil standard in relation to criminal offences. For example, the Criminal Injuries Compensation scheme (and its associated Tribunal) must apply the civil standard to determine whether a crime has been committed which is a precondition for an award under the scheme.
  6. Incontrovertibly, the standard of proof for narrative conclusions is the civil standard. Such conclusions could in principle include findings on all elements of a criminal offence.   It is accordingly difficult to see why there should be a higher standard for a short form conclusion of unlawful killing.

The consequence of such an outcome would undoubtedly be far-reaching.  Unlawful killing will be the appropriate conclusion in more cases.  Bereaved families will more frequently make submissions in favour of that conclusion.  The risk to those whose actions or omission may have contributed to the death will accordingly increase.  Those risks include risk to reputation, an increased risk of prosecution and of claims.  It is likely that there will be more representatives at hearings, and insurers will routinely take an active role in inquests.   Inquests would be even more stressful for employees than they are now. More staff will wish to be separately represented, especially where they allege that their involvement in the death was affected poor management, training, or lack of resources.

There are also resource implications for the Coronial system, already under strain in many areas due to cuts in local authority areas.

It’s not the outcome anyone is expecting, but watch this space…..