CQC has announced a simplified approach to inspection and regulation and has produced a heavily revised version of its Judgement Framework, cut from 148 to a mere 26 pages in the April 2012 edition.
In this article we present some practical suggestions for providers and managers of all types of service about how to deal with future CQC inspections and compliance reports.
Inspection
Before starting the inspection the CQC inspectors should tell the manager the outcome areas they propose to examine and the tools they will be using to gather evidence (if this is not done they have not followed CQC’s own process). CQC intend to focus on a small number of outcomes, probably including a selection from these:
Outcome 1 – Respecting and involving people who use services
Outcome 2 – Consent to care and treatment
Outcome 4 – Care and welfare of people who use services
Outcome 7 – Safeguarding people who use services from abuse
Outcome 9 – Management of medicines
Outcome 12 – Requirements relating to Workers
Outcome 14 – Supporting workers
Outcome 16 – Assessing and monitoring the quality of service provision
Naturally providers should always be ready to demonstrate compliance with all the essential standards.
If the inspectors identify a breach of the essential standards during the inspection they will probably issue a ‘Code B Notice’ (now standard CQC practice). The title derives from Code B of the Police and Criminal Evidence Act Code of Practice. Being handed one often unnerves managers but in fact the Code B Notice is only a warning device alerting the provider that the inspector believes an offence has been committed. Therefore, although it may feel intimidating it is nothing to worry about. The Code B notice sets out the statutory inspection powers of the CQC as well as the rights of the provider in relation to search and seizure and should contain brief details of the alleged offence(s). The provider is entitled to a list (normally attached to the Notice) of any records seized. In practice the inspector will normally take photocopies rather than original documents as the service will of course need them.
A key principle of inspection is that the draft inspection report should contain no nasty surprises. In other words, inspectors must give proper feedback during the inspection visit. CQC guidance states that even where the inspector has given feedback during the visit to the provider or staff (historically a favourite excuse used to justify a quick exit from the premises), the inspector must still summarise those findings before leaving. Feedback should cover positive as well as negative elements of the service in a balanced way, focusing on the main issues. However the feedback session is not supposed to be an opportunity for you to debate the findings or introduce additional evidence.
Despite the above guidance, some CQC inspectors are still inclined to provide little or no feedback but that is unacceptable [In the case of homecare services (currently subject to a programme of 250 thematic inspections), we anticipate that full feedback will be quite difficult to obtain because the inspectors will be gathering evidence at different times from multiple sources, for example conducting follow-up interviews with clients, and canvassing more widely the views of service users, families and other interested parties e.g. local authority commissioning teams. Even so, homecare managers should insist on receiving a proper summary of the inspector’s findings from at least the site visit to the homecare office]. What is said should be formally noted so that an early response can be submitted, perhaps even before publication of the draft report. After all, if you know what is lacking in respect of a particular outcome you may be able to produce more evidence to demonstrate compliance, or even partial compliance that will induce the inspector to moderate the tone of the report.
Judgements about Compliance
CQC’s new methodology means that from now on all providers will be rated either compliant or non-compliant with an outcome. Where non-compliant, the minimum response will be for a compliance action to be set. For more serious shortfalls CQC might move immediately to enforcement. The suggested ‘improvement actions’ CQC previously put in their reports have been abolished.
CQC has revised its Judgement Framework, the book that inspectors use for judging compliance and working out the appropriate regulatory response. There is helpful guidance regarding the test of what is “reasonably practicable” for the provider to achieve compliance. Inspectors are required to evaluate “…the risk against the effort, time and money needed to control the risk.” A key consideration is that “…where complete control of a risk would require a disproportionate and unjustifiable expenditure or resource, partial mitigation of the risk may be acceptable.” This welcome (albeit belated) injection of realism by CQC should inhibit overzealous inspectors from imposing unreasonable requirements when the practicable preventative actions are balanced against the level of risk identified. Providers will be able to remind inspectors of this guidance, issued by their own organisation, where they believe everything has been done that could reasonably be expected to meet a particular outcome.
The revised Judgement Framework also gives some helpful guidance about what is “proportionate” when determining non-compliance. It suggests a scenario where an inspection reveals one badly handled complaint but, overall, the evidence points to a generally effective complaints system. In such a case it would be proportionate to adjudge the provider compliant. This represents a significant shift for CQC. At The Care Standards Consultancy we have frequently encountered situations where inspectors have relied on a single failure in performance to justify a finding of non-compliance even though the overwhelming balance of the other evidence available suggests compliance. Typical examples are when isolated minor errors are identified in medication or there is an unsigned care plan or missing identity records in a staff recruitment file. Such matters have resulted in judgements of non-compliance despite the vast majority of records being correct – blatantly disproportionate. To benefit from this new CQC instruction providers will need to make it easy for inspectors to see enough evidence during their visit to demonstrate overall compliance with each particular outcome.
The draft compliance report
When the draft report arrives it is vital to go through it with a fine-tooth comb and challenge any factual inaccuracies as well as any findings and judgements you consider to be wrong. CQC says that a provider can only challenge facts but that position is both arrogant and clearly wrong as a matter of law. As a public body CQC has a duty to take into account any representations a provider wishes to make regarding the assessment process and the content of the compliance report. Inspectors can and do make mistakes and must be held accountable. This is now even more important because CQC’s new “regulatory response escalator” directly links the action to be taken by the regulator with the perceived level of risk i.e. minor, moderate or major. Where the inspector detects several ‘moderate’ risks the provider will probably receive a warning notice and with a ‘major’ risk this is almost certain. Consequently providers should robustly challenge all statements, conclusions and requirements in reports that are factually inaccurate or unjustified on the basis of the evidence, referring to the concepts of ‘proportionality’ and ‘what is reasonably practicable’ to press the point. Past experience shows that this can be very effective.
If the inspector’s requirements are vague or confusing, providers should swiftly seek clarification of exactly what they need to do to meet the relevant standard. CQC, clearly stung by savage criticism of its past ineptitude and inefficiency, has stridently announced that it will “no longer allow extensions to the timescales we give to providers to meet the standards, and if a provider fails to respond we will usually escalate the action we take.” If that more aggressive approach is pursued it will be more important than ever to ensure the inspector receives any queries and challenges as early as possible during the draft report consultation stage. You do not want to risk CQC proceeding to publication of the report before you respond, as at that point concessions will be much harder to achieve.
Conclusion
Providers should:
Clearly CQC plans to use its formidable regulatory powers to intervene far earlier in cases of non-compliance. If problems crop up at or following inspections, providers should consider obtaining expert advice from specialists in the field at a similarly early stage.
Tom Cooper.