Legal Opinion

‘Flexible & Responsive Regulation’: The CQC’s Consultation Proposals

Laura Hannah, Partner, Stephensons Solicitors

Whilst the CQC’s core regulatory role has not changed, the pandemic has undoubtedly highlighted the need for the CQC to change its approach to the way in which it regulates, in order to allow more flexibility and to place themselves in a better position to deal with any future challenges that may arise.

During the course of the pandemic, the CQC suspended their usual routine inspections and instead carried out focused or targeted inspections where serious risks or concerns were identified. In the interim, they also monitored services through their Emergency Support Framework and Transitional Regulatory Approach. However, prior to the pandemic, the CQC followed a schedule of inspections which consisted of comprehensive inspections every six to 30 months from the last published report, depending on a service’s previous ratings. Those inspections consisted of a physical site visit to assess the quality of care provided and to determine the ratings of the service. Inspection judgments were also supported by information obtained from a variety of other sources, such as feedback from the public and information received from other stakeholders, for example.

Over the years, the rigidity of this inspection schedule has often caused frustration for providers where there have been long delays in between inspections despite their existing ratings impacting on factors such as their funding, contracts and reputation. The CQC have often been considered to be very inflexible and more reactive rather than proactive, only acting outside of the usual inspection timetable when they received information about a potential risk or concern. However, others have preferred the certainty that a fixed schedule offers and argue that a clear, structured schedule instils fairness and proportionality into the inspection process.

The pandemic has, however, developed the way care is provided and information is shared, with an increased use in technology and more services being provided remotely. In addition, there has been a more flexible approach to the way care is assessed, with a particular shift in focus from on-site inspections to more remote assessments. These changes have informed the CQC’s proposals for more ‘flexible and responsive regulation’ moving forwards.

Primarily, the CQC proposes the following two changes for adult social care inspections:

  1. To assess quality and rate services using a wider range of regulatory approaches, not just on-site, comprehensive inspections; and
  2. To have a more flexible, risk-based approach to assessments, rather than a fixed schedule of inspections.

The CQC propose to move away from the typical routine ‘inspection’ to a more targeted and ongoing review of quality, focusing on a wider selection of sources and tools without the need for on-site visits and thus providing more flexibility. The CQC state that this would enable them to update ratings more frequently when there are changes in the quality of care provided, by making use of readily available information and being less reliant on physical on-site inspections, which can be time-consuming. This proposal is also made on the basis that this would remove the rigidity currently experienced by the current inspection schedule. This approach will arguably rely more heavily on an inspector’s professional judgment and will require a significant update to the CQC’s current assessment frameworks and guidance to ensure that all providers are treated in a fair and proportionate way, and are afforded the same opportunities to update their ratings.

Although, it is acknowledged within the CQC’s consultation that site visits are a key part of their assessment activity as they enable inspectors to observe the culture of a service and the care provided first hand, as well as to verify any feedback received. As such, it is intended that on-site inspections would still be undertaken where information in relation to a significant risk or concern is received and to protect the rights of vulnerable people.

In addition, providers will be familiar with the usual Provider Information Requests (PIRs) which are usually sent to providers before a comprehensive inspection, requesting information or documentation prior to the inspection. These PIRs can often be quite time consuming and burdensome for providers. The CQC instead propose to use more ‘targeted and proportionate’ requests for information, alongside targeted inspections.

The CQC’s consultation on these changes remains open until 5.00pm on Tuesday 23 March 2021. There is no doubt that the past year has taught us all to be more flexible, to utilise technology in a more meaningful way and to adapt to changes more quickly and effectively in order to weather the storm and survive in this ‘new normal’. Whilst change can lead to more positive outcomes, it is also important that we ensure that any changes made work for everyone involved and ultimately, that regulation is fair and proportionate across the care sector.


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