Jenny Wilde, Partner at Acuity Law, shares her thoughts about the rise of the Care Quality Commission’s Warning Notice and examines whether this is a symptom of risk-based regulation and the new assessment framework.
Across England, providers of health and social care services are gradually getting more comfortable with the Care Quality Commission’s (CQC) new assessment framework. It will take time to get used to “Quality Statements” and a new scoring system and there is no shortage of third-party guidance, advice and support on how it can be best navigated. It is hoped that the new “dynamic” and streamlined system will be more user friendly but what will this new, light-touch approach look like when it is driven by the perception and presentation of risk?
Since the pandemic, the CQC has operated its inspection regime on the foundation of “risk”, meaning that an inspection is more likely to be triggered by an adverse event, complaint or safeguarding issue. The CQC will review a service looking for evidence to support the existence of a concern, rather than looking for “Good” – which had previously been its starting point.
There is clearly some capacity for flaws in this new system, notably the lack of priority of the CQC to review and rate services which have improved or around the question of the ways in which providers can evidence good care through an online portal and reduced in person observations. However, this article covers the issue of how the new regime could lead to an increase in the CQC’s most low-level enforcement activity – the issuing of Warning Notices.
What is a Warning Notice?
Warning notices are issued where a service is deemed to have failed to, or continues to fail to, comply with one or more of the regulations. The CQC can still issue a Warning Notice for a historical breach, which has been rectified, if it considers the breach was serious enough.
A Warning Notice must be issued in writing, and must state:
- the relevant legal requirement that the registered person is not complying with (i.e. the regulation);
- how the registered person did not comply or is continuing not to comply;
- and the timescale within which the registered person must comply.
Providers should be aware that the CQC must send a copy of any Warning Notice that it issues to relevant external bodies, such as a commissioning authority, in line with section 39 of the Health and Social Care Act. This act has the power to raise concerns within commissioning bodies and services could find themselves under scrutiny from a local authority looking to ensure that their service users are safe in a social care setting.
As a matter of course, the CQC will publish a Warning Notice more widely which can lead to an incorrect narrative about your service being placed in the public domain and even adverse press coverage. For these reasons a robust challenge is important.
Can I contest a Warning Notice?
The CQC’s powers to issue and publish Warning Notices are discretionary. Although there is no statutory right of appeal against a Warning Notice a registered person can make representations about it which can make the following arguments:
- the notice contains a serious error;
- is based on inaccurate ‘facts’;
- has not been issued in accordance with the legal test;
- makes requirements that are not reasonable or proportionate; and/or
- it would be unfair to publish it.
Considering the CQC’s new remote and dynamic approach to inspection, one must consider how inaccurate facts could potentially arise out of reviews that take place offsite, without the benefit of witnessing the delivery of care firsthand. Disproportionate judgments and conclusions could easily be reached by purely reviewing documentation that has been uploaded to the portal, out of context and without the assistance of the staff working at the service.
If a provider believes that a Warning Notice has been issued to its service which features the above flaws, it is crucially important to challenge the points of concern. Aside from issues of factual inaccuracy, it is also possible to make representations as to why the Warning Notice should not be published. This argument would arise when publication is not in the public interest or because it relates to a historical breach that has already been rectified. It is important to detail all remedial works in respect of the Warning Notice when making such representations as this will evidence that the Warning Notice is no longer “contemporaneous” and is therefore irrelevant and prejudicial.
Any representations against a Warning Notice must be made in writing, within 10 working days of receipt of the notice.
CQC response to representations
After consideration of representations, the CQC will decide to uphold them or not uphold them.
If they are upheld then the outcome letter should formally record that the Warning Notice has been withdrawn and will not be published. In this case, any relevant external bodies who had been informed of the Notice will then be informed that it has been withdrawn.
If the Warning Notice representations are not upheld then the CQC will provide its rationale for not doing so and the Warning Notice will stand and be published. There is no further statutory appeal process for a registered person and if a provider wished to challenge such a decision, this would have to be done through a Judicial Review on the grounds of illegality, procedural unfairness, or irrationality.
Given the new regulatory regime and potentially increased levels of review, low level enforcement action can rapidly escalate and lead to more serious actions, such as notices of proposals to cancel registration or the imposition of immediate and urgent conditions on a registration. As such, it is important that the CQC’s findings are accurate and that if they do result in the assertion that there have been breaches of regulations (which lead to Warning Notices) that those allegations of breach are justified and supported by cogent evidence.
All regulatory intervention by the CQC should be taken seriously and challenged where the basis is unreasonable or simply incorrect.
@acuitylaw
