Over the last six months, the Care Standards Tribunal has considered two appeals against CQC’s imposition of conditions which limit the ability of a care home to admit new residents. In both cases, CQC had used its enforcement powers to impose a condition along the lines of:
“The Registered provider must not provide any new care packages without the prior written agreement of the CQC.”
Both providers in the appeals contended that the nature of this condition was disproportionate and unfairly impacted upon their business. After analysing the facts and testing the providers in each case, the Tribunal decided that the CQC had acted fairly in one case but not in the other.
In Fortress Supported Living Services Ltd v Care Quality Commission (March 2018) the Tribunal decided that:
“…each of conditions are objectively justified and necessary in order to protect the public interest in the protection of the safety and well-being of service users and the maintenance and promotion of public confidence in the system of regulation.
In reaching our decision on the issue of proportionality, we took into account that the impact of the imposition of conditions.
We recognise that when assessing proportionality alternatives to the imposition of conditions should be considered. It is notable that the imposition of conditions is at the lower end of the enforcement measures available to the Respondent. The only other lesser measure available would be to issue a warning letter. We find that in the circumstances this would be a wholly inadequate response to the seriousness of the risks posed.”
In Clarendon Care Group Limited v Care Quality Commission (October 2017) the Tribunal stated:
“We conclude on the written and oral evidence before us today, that it does not support a conclusion, that ‘a person will or may be exposed to the risk of harm’, sufficient to justify a condition that no admission should be made without the written agreement of the Respondent.”
So what was different about the cases? In both, the Tribunal found that it was within CQC’s powers to impose such a condition as part of its objective to protect and promote the health, safety and welfare of people who use health and social care services provided that the condition was proportionate to the risks against which it would afford safeguards and was targeted only where needed. In considering the most appropriate and proportionate enforcement action, CQC must consider whether the lesser power of issuing a Warning Notice would suffice.
In the Fortress Care Services case, the provider Dr Lawal appears to have been his own worst enemy. He failed to show insight into the risks created by ongoing safeguarding issues and recruitment processes. The Tribunal criticised the fact that Dr Lawal objected to the imposition of “basic conditions, which did no more than formalise that which reflects standard practice” as evidencing a “lack of understanding and lack of insight into the importance of safeguarding vulnerable service users from the risk of harm.” As a result it concluded:
“We recognise that the condition regarding the acceptance of new care packages may well mean that there will be business opportunities that will be missed because of time constraints. However, we do not accept that the condition, in and of itself, presents any insurmountable obstacle to the acquisition of new service users. In our view the Appellant had, and still has, the opportunity to demonstrate that the service he seeks to provide can meet the core standards of safe care. We do not agree that it is the responsibility to CQC to show the Appellant how to do this. It is open to the Appellant to seek to demonstrate proactively that the service that will be provided will meet acceptable standards. In our view even if the conditions imposed do, or were to have, an adverse impact on the Appellant’s business interests, the conditions are necessary in the public interest.”
In the Clarendon Care Group case, the provider acted completely differently, putting in place a new management team to address concerns about a lack of clinical leadership and immediately providing a detailed risk reduction plan and quality audit improvement plan. The decision by CQC to restrict admissions, they said, was having a huge negative impact on their financial situation and on the morale of staff. They said that a more limited condition such as the number of persons to be admitted per week would have been more appropriate.
The Tribunal effectively agreed, finding that although there had been issues in the home, the risk of these failures could only objectively be assessed as low to medium. It found that the provider had put in place “prompt and comprehensive” measures to address the short and long term needs of the home to work towards compliance and bring itself out of special measures. In taking a swipe at the CQC inspectors, the Tribunal noted:
“We do not doubt the integrity of the Respondent’s inspectors, but they did not appear to be prepared to consider explanations that were given to them about their concerns, at the inspection. They were reluctant to accept documents that evidenced that change and improvement were in progress, but would take a period of time to achieve.”
So, what lessons can we take from these cases?
Seeing the bigger picture – understanding why CQC might have concerns – is not always easy when facing enforcement action, but is necessary to respond appropriately. A provider who cannot accept actual failings in their home will never be able to properly assess the proportionality of CQC’s enforcement action.
Where failings are identified, it is crucial to act decisively, taking objective advice on whether corrective steps are sufficient to satisfy CQC or a reasonable person looking at the risks. Speak to a consultant or lawyer who can act as a critical friend and provide support.
Engaging with CQC effectively (robustly where necessary, but never abusively) is important in demonstrating reasonableness of any response. If CQC don’t properly engage, that is their issue and could potentially be their downfall.