As a health or social care provider looking after adults or children, compliance with the legislation in your sector is central to everything you do.
Non-compliance could have serious consequences for you and your business, including adverse publicity, loss of referrals or admissions and ultimately enforcement action. If you come into conflict with your regulator, it’s important to seek legal advice at an early stage to protect your business and its reputation. We’re able to provide you with advice and representation in resolving any conflict, whether it be with Care Quality Commission (CQC) or Ofsted in England, Care Inspectorate Wales (CIW, formerly CSSIW) or Healthcare Inspectorate Wales (HIW) in Wales.
Challenging inspection reports
As a care provider, inspections by your regulator can be a daunting and stressful experience. The inspection report that follows can have significant implications for your business.
Whether you operate a care home, domiciliary care agency, hospital, GP practice, dental practice or children’s home, the inspection reports produced by your regulator and its rating of your service are a public statement about your service. Findings of non-compliance, breaches of Regulations or poor ratings can have a range of implications, which may include blocks on admissions or enforcement action (see below).
Poor ratings also commonly result in adverse publicity locally and can cause concern amongst placement bodies, residents and relatives.
As a public description of your service, you need to ensure that your inspection report is accurate and gives a true and fair picture of your service.
How we can help with challenging inspection reports?
We can help you in challenging the content of the inspection report and rating by CQC, CSSIW or Ofsted.
The success of a challenge will depend on the facts of each case, how much you dispute and what evidence you have to show statements are factually inaccurate. However, some providers we have assisted have seen significant improvements so the wording of their report, their ratings and the removal of breaches of Regulation. The factual accuracy process is your first chance to amend the rating of your service and can make the difference between entering special measures and facing enforcement action, or not. We can help you with both the factual accuracy process and Rating Reviews.
Defending enforcement action
CQC, in particular, has been taking increasingly more enforcement action over recent years. We have seen a notable increase in care homes entering special measures, CQC imposing conditions on registrations, cancellations or variations of registration of a service.
Since 2015, CQC took over from HSE as the lead investigation and prosecution body for health and safety incidents involving service users. This has resulted in an increase in CQC’s use of its criminal powers, including criminal investigations, fixed penalty notices and prosecutions, most commonly for a breach of Regulation 12 of the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014, which is the duty to provide safe care and treatment. There have been a number of high profile prosecutions in the sector over the past few years and we have represented a number of care providers in defending such prosecutions.
How can we help with enforcement action?
We have in-depth knowledge of the regulation of health and social care. We can advise you on all aspects of the law in this area, from registration through to enforcement and we specialise in dealing with conflict with regulatory bodies. We’re also experienced in negotiating and have extensive experience of represented providers in defending enforcement action through appeals before the First-Tier Tribunal. We have handled many serious cases through the Tribunal process, as well as emergency cancellation of registration proceedings before a magistrate.
If you are facing a proposal to cancel your registration or impose conditions or a criminal investigation by your regulator, we’re here to help.
The experience and expertise of our team of healthcare solicitors in advising health and social care providers means we are seen as one of the leading firms in this area.
What is the process?
The process in each case will vary, depending on the regulator, the nature of the enforcement action and your circumstances. However, as a rough guide to the process for adult social care in England:
- Variation or cancellation of registration – usually you will receive a Notice of Proposal, explaining the proposal to vary or cancel your registration and the reasons. You will then need to submit Representations to CQC within 28 days. We can support you to prepare Representations stating why CQC should not take the action proposed. Following further consideration, CQC will then issue a Notice of Decision which will either uphold your Representations or, more commonly, its own proposal. An appeal must then be submitted to the First-Tier Tribunal (Care Standards) within 28 days. It is important to seek advice early to ensure you have every chance of stopping the action without the need for a Tribunal hearing. Once an appeal is lodged, the Tribunal will set a timetable for the exchange of evidence and bundles and a final hearing date will be set.
- Criminal action – if CQC is contemplating criminal action against you, it will often begin by visiting your service to obtain information and documentation, or by requesting documentation from you. When CQC has enough information and has decided that it is considering whether or not to prosecute, you will usually be invited for a PACE interview under caution. In such circumstances, it is very important you seek advice early because action of this nature can have serious consequences for you and your business.
If you find yourself or your business facing any of these situations, it is vital to seek advice early. Unfortunately, many providers do not contact us until CQC has started action, for example, to cancel the registration of a service, because they are worried about cost, but by that stage, it usually ends up costing more and we have missed the opportunity to help avoid that action.
Frequently Asked Questions
CQC will send you a copy of the draft report and invite you to check the factual accuracy and completeness of the information contained in the draft report. This is your key opportunity to challenge anything incorrect in the report. There are strict time limits for responding the draft report. You must check the report carefully for inaccuracies.
CQC will send the Registered Person with an email attaching the draft inspection report. Upon receipt of the email, you will have 10 working days to submit your comments. The timescale may only be extended in exceptional circumstances.
A rating can be challenged firstly through the factual accuracy process. After that, there is a further chance by way of a rating review. If you wish to request a review of one or more of the ratings, a review form must be completed within 15 days of the report being published. When requesting a review, it is important to clearly set out the grounds for challenging the rating. CQC guidance states that rating reviews will only be completed where CQC has not followed its published process properly. The rating review process is the final CQC process for challenging a rating.
If CQC considers that significant improvements need to be made by a service, they may issue a Warning Notice to the Registered Person. A Warning Notice will require improvements to be made within a certain timescale set by CQC.
A professional can appeal a final decision made by a professional regulator. There are complex rules and procedures relating to appealing decisions and it would be wise to seek legal advice if you wish to appeal a decision.