CQC’s New Regulatory Approach: The Turn of the Screw Peter Grose Head of Healthcare 01202 786163 peter.grose@la-law.com

Is the sector one horror after another? “Over these last 30 years, it feels to me that we have stumbled from crisis to crisis, from one Panorama programme to the next, from inquiry report to inquiry report.” JRF – John Kennedy’s Care Home Inquiry October 2014

October 2014: CQC Begins to Turn the Screw “There is much excellent care but the variation in the quality and safety of care in England is too wide and is unacceptable Safe services occur where effective leadership builds a culture of safety By looking at CQC’s reports on outstanding and good care, other services can learn and improve CQC’s ratings provide transparent information that allow people to make choices” CQC Fifth Annual Report October 2014

The Turn of the SCREW Safe? Caring? Responsive? Effective Well led? The ‘Five Questions’ now form the basis of CQC’s new operating model

CQC’s New Operating Model Provider Handbook: ‘How CQC regulates Residential Adult Social Care Services’ March 2015 Registration – more rigorous Intelligent Monitoring Provider Information Return Feedback from service users and the public Inspection by experts Ratings Holding poor care providers to account, eg direct focus on directors; “Special Measures”

Inspections and KLOES Provider Handbook Appendix A 16 mandatory KLOES, each with “prompts” spread across the five questions Will inspections be more professional?

Ratings Outstanding; Good; Requires Improvement; Inadequate Legal requirement to display rating prominently: CQC Template Characteristics: set out in Appendix B of Provider Handbook “We need to be as consistent as we possibly can so that our ratings are reliable and provide accurate information. This will also help reduce the number of requests for review.” CQC Provider Handbook

Ratings Principles Level 1 – rating for each key question; Level 2 – aggregate overall location rating Outstanding – two Os and three Gs Good – only one RI Requires Improvement – two RIs Inadequate – two Is

Limiters on Ratings There will always be a rating of “Requires Improvement” if: No registered manager and no satisfactory steps to recruit within a reasonable timescale Other conditions of registration not met “without good reason” Not returning PIR

Inspection Frequencies “Subject to available resources within the following periods”: Outstanding – two years Good – 18 months Requires Improvement – 12 months Inadequate – 6 months

Challenging Ratings Factual accuracy check (and completeness of evidence) Warning Notice – representations that are upheld may improve rating Request for rating review: only ground is that inspector did not follow published process for making ratings decision can only be made when report is published single opportunity for review review conducted by inspectors not involved in original inspection with access to independent reviewer noted on CQC website entry Parliamentary and Health Service Ombudsman Judicial review

New Regulations and Fundamental Standards CQC ‘Guidance for providers on meeting the regulations’ March 2015 HSCA 08 (Regulated Activities) Regulations 2014 In force for private healthcare and social care providers from April 2015 Contains 11 Fundamental Standards plus: Fit and Proper Requirement for Directors Duty of Candour

Criminal Offences – Part 1 Prosecution without warning notices for certain offences: Reg 11 - Consent to care and treatment Reg 16(3) - Receiving and Acting on Complaints - Summary to CQC within 28 days Reg 17(3) - Good governance - Report to CQC within 28 days Reg 20(2)(a) - Duty of Candour - Duty to inform re notifiable safety incidents Reg 20(3) - Duty of Candour - Notifications must meet specific requirements Reg 20(A) - Requirement to display Performance Assessment

Criminal Offences – Part 2 CQC can prosecute for the following offences, but only if the breach of the regulation results in people who use services being exposed to avoidable harm, a significant risk of such harm occurring or suffering a loss of money or property as a result of theft, misuse or misappropriation: Regulation 12 Safe care and treatment Regulation 13 (1) to (4) Safeguarding service users from abuse and improper treatment Regulation 14 Meeting nutritional and hydration needs For breaches of the remaining regulations not listed on these slides, CQC can take regulatory action other than prosecution.

Criminal Justice & Courts Act 2015 S.20….ill treatment or wilful neglect: care worker offence S.21….ill treatment or wilful neglect: care provider offence S.21 Ill-treatment or wilful neglect: care provider offence (1) A care provider commits an offence if- (a) an individual who has the care of another individual by virtue of being part of the care provider’s arrangements ill-treats or wilfully neglects that individual (b) the care provider’s activities are managed or organised in a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated or neglected, and (c) in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur Penalties: Fine Remedial order Publicity order

Good Governance Regulation 17 Systems and processes to assess, monitor and improve quality and safety of services provided inc assessing and reducing risk Evaluate and improve practice re processing information relating to the above Produce a report to CQC on demand within 28 days

Duty of Candour Regulation 20 CQC states “significant room for improvement in under-reporting incidents and failing to learn from things that go wrong” Breach will be used “to encourage good practice through ratings” rather than prosecution Notifiable Safety Incidents: death; physical or mental impairment 28 days; prolonged pain or psychological harm; shortening of life expectancy Providers must: Inform the person and provide reasonable support as soon as reasonably practicable Provide a true account of the incident on the facts provider aware of Advise on further enquiries Offer an apology Written notification including details of enquiries to be undertaken and an apology Keep a secure written record - produce to CQC on demand within 28 days

Fit and Proper Requirement for Directors Regulation 5 Currently corporate “fitness” assessed by testing the fitness of the “nominated individual” From April 2015 all directors (inc non-execs and trustees) will be held accountable if care standards fail CQC will be able to exclude from office those responsible for “serious misconduct or mismanagement (whether unlawful or not) in discharging any office or employment with a registered provider” CQC will require Chairman to confirm fitness of all directors as above and sign a declaration Enforcement through imposing conditions

And finally….. The Five Questions demand greater professionalism from Providers and Inspectors Cost: higher inspection fees Ratings: commercial consequences of a lower rating; purchase a re-inspection? Time is limited for inadequate providers Surveillance?

Thank you Peter Grose 01202 786163 peter.grose@LA-law.com www.lester-aldridge.co.uk Connect with me on LinkedIn Follow us @LACareTeam Find us on Facebook