On 30 April 2020, CQC issued a joint statement on behalf of the Chief Inspectors of hospitals, primary medical services and adult social care.  That statement acknowledged that the nation is facing a major health crisis that has required all bodies, including CQC, to work in different ways.  In the statement, CQC speaks of its new Emergency Support Framework which it will be starting to roll out from 4 May 2020, sector by sector – starting with adult social care.

CQC regulatory role has not changed and CQC states it will continue to ensure that health and social care services which are provided to people are safe, effective, compassionate and provide high quality care.  Whilst aware of the “intense challenge and changes to how care is delivered” CQC notes that there increased risks to people receiving care, both those with Coronavirus and those without it, whose care and treatment is being directly or indirectly affected by the pandemic.

CQC has therefore developed an Emergency Support Framework which it states will assist it in identifying these risks and responding in an appropriate way in order to keep people safe.  CQC states that the Framework has been designed to be flexible to allow it to respond to changing needs of the health and social care system at this time.

CQC states that it expects services to continue to do everything in their power to keep people safe.  CQC will continue to regulate services in a variety of ways to identify where support is needed and through some inspection activity.  CQC is clear that it will continue to inspect where it sees evidence of harm, deliberate abuse, systemic neglect or a significant breakdown in leadership – and it will use its powers to take action against those responsible where it finds unsafe or poor care.

However, CQC has stated it intends to adapt its approach and any regulatory action according to the different sectors it regulators and will not adopt a one size fits all approach.

CQC has also taken this opportunity to reiterate its request for feedback about the care people are receiving – highlighting its desire to hear from people that use services as well as employees.  Inevitably, such information will feed into its risk assessment processes referred to above.

Emergency Support Framework (ESF)

On 1 May 2020, CQC published further details of its Emergency Support Framework.

CQC’s approach will involve the following:

• Using and sharing information to target support where it is needed most – this will be from both new and existing sources. Including notifications submitted by providers, increasing efforts to obtain feedback from the public and care staff and also whistleblowers.  CQC will use this information to inform its view of risk and to make decisions.
• Having open and honest conversations with providers, health and care staff, partners and wider stakeholders (eg local authorities). CQC intends to use this information to support them to resolve issues, mitigate and manage risks and support tough decisions to help keep people safe.
• Taking action to keep people safe and to protect peoples human rights – CQC will do this by using its powers to take action where it finds unsafe or poor care.
• Capturing and sharing what CQC does and how it does it – this is with the intention of demonstrating transparency about the action CQC have taken and informing how it approaches the recovery phase of the pandemic.

What does this mean in practice?

CQC will be calling providers to have “open and honest” conversations, apparently so that CQC “can support you to resolve any issues and make tough decisions to help you to keep people safe”.

 CQC will prioritise which services to contact based on information obtained from new and existing sources and its perceived level of risk.

A service with a higher risk level will have more contact from their inspector, as CQC will continue to monitor and engage with you until the emergency period is over.

Calls will mostly be made using Microsoft Teams and CQC states that the conversation will focus on four areas:

• safe care and treatment
• staffing arrangements
• protection from abuse
• assurance processes, monitoring, and risk management.

For each area, CQC will informally explore and discuss some short questions with you. These will apparently mostly focus on how prepared you are and how your service is managing in this pandemic.  CQC will also ask if there is anything you need help with and the inspector can also point you to relevant sources of support, information, and advice and share examples from other services of good practice and innovative ways of how they are managing.

Inspectors will begin making contact with adult social care services to book in these calls. If a manager is unavailable due to illness etc, CQC may ask to speak to another member of staff.

In some (apparently exceptional) cases, CQC may ask to see evidence relating to particular risks, by asking the provider or manager to share their screen for the inspector to view documentation or by sending email attachments.

The Inspector will make a written record of the call and will send you a written summary after the call which “will list:

• the short questions [CQC] asked and the appropriate standard wording that reflects your answer;
• a summary of the specific internal and external risks and challenges that were discussed;
• any sources of support that [CQC] suggested;
• a short summary of whether the service is ‘managing’ or ‘needs support’.”

CQC has emphasised that this is not an inspection, the summary will not be an inspection report and this process will not result in any rating of a service. Therefore the factual accuracy process will not apply to these records.

Based on these calls, CQC will assess whether a service is ‘managing’ or ‘needs support’ and determine the action required.  Depending on CQC’s assessment of the risks, CQC may:

• provide additional sources of support
• arrange a follow-up call
• use inspection and enforcement processes

Where an inspection then takes place, CQC will produce an inspection report in the usual way. It is also likely to share details of the findings from these calls and any inspections, with other agencies.

The ESF guidance will be kept under review and may be updated by CQC as matters develop.

Although CQC states that its main aim is to support providers at an exceptionally difficult time and that enforcement action is likely to be exceptional, it is clear that CQC wishes to remain an active regulator, notwithstanding the current lockdown situation.

Whilst it is positive that CQC is reporting its desire to support providers in the sector through these unprecedented challenges, we are also mindful of CQC’s increasing appetite for enforcement action over recent years.  We sincerely hope CQC will take a reasonable and pragmatic approach given the current situation but CQC has been very clear that it will take action where people are at risk of harm and it is easy to foresee circumstances that may arise during the current situation where care the standards of care delivered and record keeping etc are not to the robust standards they would usually be, resulting in potential risk.

We therefore reiterate our earlier guidance to services to ensure records are as thorough as they possibly can be in the circumstances and any difficult decisions are risk assessed and documented.

If you find yourself faced with any concerns being raised by CQC or potentially enforcement action then please contact our CQC defence lawyers through Laura Guntrip or 01202 786187 at the earliest opportunity to discuss how we can support you through this.