What are they?

Unless the need is urgent, CQC must issue a notice of proposal before it does any of the following:

  1. Cancels a registration.
  2. Imposes a condition on a registration.
  3. Varies a condition (including removing a location).
  4. Refuse an application relating to registration.

The notice sets out the action CQC proposes to take giving full reasons and attaching evidence.  In relation to a notices other than to refuse a new application, the notice will usually set out a history of non-compliance.

 

Effective Management

  1. You have 28 days to respond to the notice from the date of service. CQC will then make a final decision.
  2. Include a detailed action plan setting out what you have done to remedy issues, and prompt but realistic deadlines for any outstanding matters.
  3. CQC will also expect evidence to support any claims you make about the action you have taken to date. For example, if you have redrafted care plans, they will expect samples to be provided.
  4. You are more likely to succeed at this stage if you also reassure CQC that you have made improvements to your quality assurance processes. That may include designing and implementing new audit tools that reflect all CQC regulatory requirements, and are effective at identifying areas for improvement before CQC does.  The quality assurance system should also ensure that progress on action plans is regularly reviewed.
  5. Investing in operational support at this stage to help with remedial action, audits and designing new systems may result in CQC ending its enforcement action, which will be significantly less costly than if the matter proceeds to an appeal.
  6. If the notice of proposal contains factual errors, you should identify them in your representations.  However, representations will very rarely succeed based on factual errors alone due to the quantity of issues that are likely to be raised in notice of proposal, usually over a sustained period.
  7. If you have a new registered manager in post, you should bear in mind that enforcement action incurs a risk for them too. They may abandon ship for a less risky role down the road.  Consider incentivising them to stay, for example by a bonus when the enforcement ends.  The same applies if you are recruiting a new manager.  Candidates are more likely to opt for less risky services, so your incentives need to reflect that.  A lack of continuity in management is likely to impact adversely on your improvement program and will not engender CQC’s confidence.
  8. Consider your strategy of communicating with other key stakeholders including staff, relatives, residents and commissioners. They will be more supportive if you are open and reassuring and will be more unsettled if they hear important information from third parties.
  9. The stakes are high, so legal advice is usually appropriate. This should be accessed as soon as possible after the notice is served.

 

What next?

  1. CQC will consider your representations and make a final decision. If it accepts your representations, it will decide not to adopt its proposal.
  2. You will still need to keep a close eye on the service to ensure that improvements are sustained, and in particular that your quality assurance system remains effective at identifying and resolving areas for improvements.
  3. If CQC adopts its proposal, you have 28 days to appeal to the Tribunal.
  4. If the matter proceeds to a final hearing, the Tribunal will decide the appeal based on evidence right up until the date of the hearing so you will still have ample opportunity to beat the enforcement action through improvement.
  5. CQC will usually inspect again before the final appeal so that it can provide recent evidence to support its case. You should therefore be ready for such an inspection throughout this period.
  6. Appeals frequently settle based on improvements made before the final hearing. Often, CQC will be agreeable to a stay appeal to enable such improvements to take place.  This can give you more time if you need it.
  7. It is usually advisable to instruct an independent expert to give a view as to the quality of the home. To maximise the weight that will be given to such opinion evidence, the expert should not be a consultant you used to help you to improve the service (though any such witnesses can be called in addition).
  8. Other likely witnesses will include the manager and someone from the senior management to explain how quality assurance will be maintained.
  9. Hearings take place before a tribunal judge and two lay tribunal members who will have some connection to the health and social care sector.
  10. A written decision will be handed down, usually a few weeks after the hearing.

In a nutshell

  1. The focus throughout should be on evidencing improvements.
  2. Thoroughly review your quality assurance system.
  3. Seek legal and operational help promptly.
  4. Keep key stakeholders on side.

 

For more information about our CQC services, click here.

 

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/

 

 

 

 

 

 

Inquests in a nutshell

An inquest is a fact-finding investigation into a death when the coroner has reason to suspect:

  1. the death was violent or unnatural;
  2. the cause of death is unknown; and/or
  3. the death was in state custody (this no longer includes DoLS but includes detention in hospital or prison).

The coroner is usually required to determine how the person came by their death.  However, in cases where the state arguably breached its obligation to protect the life of the deceased, the coroner is required to determine the wider circumstances (these are called Article 2 cases).   In practice, though, the coroner has a wide discretion as to the scope of an inquest in all cases.

Almost all cases are heard by a coroner sitting alone though some cases – such as those involving unnatural deaths in custody, deaths involving police contact or cases that are required to be reported to the HSE – are heard with a jury.

In all cases, where a coroner considers that preventative action should be taken to avoid future deaths in similar circumstances, the coroner must report to people s/he believes can take that action.  The reports are known as ‘regulation 28 reports’ or ‘prevent future death’ or ‘PFD’ reports.

 

Advice on draft statements

It is sensible to seek advice before sending any statements to a coroner.  Experienced advisors will anticipate the key issues and check the statements address them.   They will also routinely contact coroner’s officers to seek a steer from the coroner.

Generally, coroners will not issue regulation 28 reports 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.  However, in some cases, particularly when there are open regulatory investigations, care must be taken not to make damaging admissions.

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.

 

When to seek representation for the hearing

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 is unlikely to be required.  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’ (or ‘IP’) 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 outstanding investigation by the 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 found shortfalls in the care provided.
  9. Jury cases.

If in doubt, please contact me for an informal discussion.

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

 

For more information on inquests, see our inquests page here.


Imagine you are given a set of eight index cards.   Each card shows a picture of a child eating one of two types of food – a gooey chocolate cake or a light carrot cake.  Each card also shows the child’s reaction after eating it – either smiling or looking ill.  You are asked if the cards suggest either kind of food makes the child unwell.

If you are like the subjects of an experiment conducted by Deanna Kuhn, you would suspect that chocolate cake was unhealthier and would say that the evidence supported you.  In her experiment, that was the case even when the cards showed a greater correlation between the carrot cake and sickness.  Kuhn concluded that if people were able to find some evidence in support of their hypothesis, they were able to reach a conclusion that the evidence supported their view.

This is one of many studies relating to confirmation bias – the practice of seeking, interpreting and ignoring evidence to support views one already holds.

The phenomenon of confirmation bias affects CQC and providers as well as other stakeholders.  For CQC, inspectors likely form views very quickly.  According to the social psychologist Jonathan Haidt, the mechanism of decision-making is that intuition leads the way, and the head follows.  When it comes to inspections, confirmation bias means that inspectors would naturally seek evidence to support their intuition, and ignore or fail to gather other evidence.

Health and social care services are incredibly complex institutions and in every setting there is ample opportunity to find evidence – favourable or not – to support one’s intuition about the quality of the service.

It is no wonder that the day after Panorama was broadcast Sir Stephen Bubb said on Radio 4 that CQC was not fit for purpose.  The reality is that CQC is not currently able to reliably and consistently tell the difference between good and unsafe services.   Its inspectors are probably collecting evidence and drafting reports to support views they subconsciously formed before reasoning kicked in.

As to providers, it is natural for them to want to feel a sense of pride about their services.  They may be more willing to seek out and accept evidence that supports that view, particularly if it is in agreement with the view of other stakeholders.  The closer the relationships between those auditing services and the location in question, the more likely it is that they will intuitively have a positive feeling towards the service, and the less likely they will be to find fault.  In some cases, providers may also reward managers according to internal quality KPIs, adding a further incentive for seeking favourable evidence.

When it came to Whorlton Hall, it seems that the confirmation bias of CQC and the providers was working against them identifying the poor standards.  In the case of CQC, that reportedly included supressing the views of one of its inspectors.

What are the solutions?

For CQC

  1. Recognise the power of confirmation bias and test how it is affecting its inspection function.
  2. Explore the origins of inspectors’ intuition. This may involve an uncomfortable exploration of unconscious bias.
  3. Studies seem to show that working with others can mitigate the risk of confirmation bias. Consider abandoning the ‘lead inspector’ model and using a genuinely collaborative approach.
  4. Greater standardisation about how and what evidence is collated, and how it is interpreted.
  5. Test the objectivity of inspection methodologies by having different inspectors interpret the same evidence.
  6. Train inspectors to seek evidence that disproves their intuition, rather than only seeking evidence that supports it. That is the only way of testing whether a hypothesis is truly sound.

Providers  

  1. Use robust quality assurance systems to audit quality and compliance. Test the effectiveness of those systems in identifying areas for improvement.  If they are not spotting problems, they are not working.
  2. Use external consultants to provide an additional check.  Vary the consultants to avoid personal relationships between the consultant and managers that can hinder the objectivity.
  3. Incentivise people to identify areas for improvement.
  4. Test whether incentives for positive internal audit results hinders identifying development areas.
  5. Listen carefully to the views of people using services. What is their daily life really like?
  6. Consider mystery shopping or other innovative methods of testing how services are experienced, rather than how they are recorded.

 

Please get in touch if you have any thoughts on this, or need any help on regulatory matters.

 

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

 

CQC’s new Facutal Accuracy Forms and Guidance

CQC’s new factual accuracy forms and guidance have been published and are available ­­­here:

https://www.cqc.org.uk/guidance-providers/how-we-inspect-regulate/factual-accuracy-check

CQC’s guidance states that the purpose of the factual accuracy process is to allow providers to tell CQC

  • where information is factually incorrect; and
  • where its evidence in the report may be incomplete.

The guidance states that CQC will not consider submissions about ratings ‘solely because you disagree with it’ (emphasis added).  It seems likely that CQC will only consider submissions based on factual errors but that remains to be seen.  I would continue to raise points about the appropriateness of ratings based on the ratings characteristics at the factual accuracy stage, both because rating reviews are rarely successful and because it gives providers two bites at the cherry at getting an improvement.  Arguably, CQC shoudl consider all relevant information when making decisions, which ought to include representations from providers.

CQC states that the process should not be used to challenge how an inspection was carried out.  That reflects current practice, but is somewhat artificial becuase the way an inspection was carried out and the reliability of the findings are inextricably linked.

CQC’s forms must be used (unless CQC gives permission to use another method in advance) though the forms are readily available on its website, so advisors can contribute as before.

Sensibly, the proposal for a word limit has effectively been scrapped.   Although there is a 975 character word limit per cell, CQC states “If you can’t make your point using one row, you can continue in the one below.”

As regards evidence, the form states

“for each point, you must specify exactly where we can find the information that supports your correction (you cannot hyperlink or embed it into this form)”. ­­

I would continue to forward supporting evidence with the form so that CQC can consider it when deciding whether or not to accept the correction. Note that CQC’s new guidance states:

“If you provide a document to support points, you must specify the page and paragraph number and highlight the relevant part of the document that relates to the point you are making. If this is not clear, the inspector will need to ask you for it and if you do not provide it, we may not consider this document further.”

A new development is that if CQC considers that providers have not submitted evidence to support a point, they will ask for it. That is welcome, though it is regrettable that the new guidance still fails to comply with the High Court judgment in the SSP case, which stated that if a provider had concerns with CQC’s reply to its factual accuracy response, the provider should have the opportunity of a review by someone within CQC who was not involved with the inspection.

In terms of timescales, the new guidance is clear that CQC will be stricter on enforcing a 10 working day time limit which will start to run from when the draft report is emailed to the provider.  Providers should ensure that the email address CQC holds for regulatory purposes is current and monitored regularly, particularly after inspections.

Finally, CQC has a separate form with additional sections for draft reports that are served with appendices and tables.  I have asked CQC for information as to when these will be used and will update this blog when I hear back.

Please get in touch if I can be of any assistance with factual accuracy submissions, CQC enforcement or other legal matters affecting your helathcare business.

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/

 

I am delighted to announce the launch of Healthcare Counsel today.  After a career as a partner for  top-ranked firms in the health and social care sector, I am returning to practise as a barrister.  In addition to having rights of audience in all courts and tribunals in England and Wales, I am authorised by the Bar Standards Board to accept instructions directly from businesses and to conduct litigation.  I am therefore able to offer all legal services health and social care businesses may need.

Healthcare Counsel’s mission is to be your in-house regulatory lawyer, providing the very best expertise in healthcare regulatory law with a highly responsive service and at a reasonable price.  We will achieve this by working at your premises wherever possible to get to know you and your business, keeping overheads to a minimum.  Please contact me at any time for an informal discussion.  I look forward to working with you!