- Providers and managers tend to focus on the CQC assessment framework and the KLOEs and, in so doing, often fail to have sufficient regard to the importance of the CQC guidance on compliance.
- The overall rating of a service cannot normally be better than ‘requires improvement’ if there is a breach of regulations.
- The other area causing services that otherwise would be overall ‘good’ to be downgraded to ‘requires improvement’ is a failure to notify CQC of incidents or Deprivation of Liberty Safeguards authorisations.
- The latest version of CQC’s How CQC monitors, inspects and regulates adult social care services was published in May 2018.
Before ratings were introduced at the end of 2014, CQC carried out compliance-based inspections against the essential standards, underpinned by detailed regulations. Inspection was about compliance, pure and simple. A provider was either compliant with the regulations or in breach of them. However, the whole inspection and reporting framework was turned on its head with the introduction of new sets of assessment frameworks in October 2014. The whole focus of these was to generate ratings of ‘outstanding’, ‘good’, ‘requires improvement’ or ‘inadequate’.
This article considers key aspects of the ratings and compliance systems of regulation, with examples drawn from CQC’s own inspection of registered services. In particular, it demonstrates how the two systems of regulation have an uneasy relationship, with ratings being the dominant partner.
Rating assessments are carried out by CQC in accordance with section 46 of the Health and Social Care Act 2008.
It is fair to say that the major focus of inspection is gathering evidence in relation to the key lines of enquiry (KLOEs) in order to generate ratings. This is done by taking into account ratings characteristics, as well as inspectors using their professional judgement. Before November 2017, CQC used very general ratings characteristics for each of the five key questions: safe, effective, caring, responsive and well-led. However, now CQC assesses the evidence against ratings characteristics for each and every KLOE that falls under the five key questions.
Compliance inspections are carried out in accordance with section 60 of the Health and Social Care Act 2008.
Enforcement action can only relate to specific breaches of legal obligations.
CQC has issued guidance to help providers comply with the regulations (March 2015). The guidance applies equally to registered managers, not just providers. This is because ‘registered persons’, who comprise registered providers and managers, ‘must have regard to this guidance’ in seeking to comply with the regulations. In addition, CQC must take this guidance into account when making regulatory decisions. Given the understandable preoccupation with getting the best ratings, providers and managers tend to focus on the CQC’s assessment framework and the KLOEs and, in so doing, often fail to have sufficient regard to the CQC’s guidance on compliance. In part, that is the fault of CQC, as it recommends that providers align their quality assurance processes with the CQC performance assessment framework.
The relationship between ratings and the regulations
CQC has attempted to describe this relationship in its enforcement policy (February 2015) on page 9. This is set out in Table 1 below.
What is striking is how general the statements in Table 1 are.
There is also the peculiarity of the ‘requires improvement’ rating, which includes services that ‘may or may not be meeting the standards set out in the regulations’. What CQC should do is limit the overall ‘requires improvement’ rating to services that are in breach of regulations but where the risk of harm is low. For compliant services there should be a ‘satisfactory’ or ‘compliant’ rating, which used to be the case under the old star rating system operated by the former Commission for Social Care Inspection.
The statements in Table 1 about the ‘good’ rating are also contradictory. In the ‘level of meeting the regulations’ box it says that to be ‘good’ you have to do more than just meet the standards set out in the regulations, yet in the ‘high-level characteristics’ box it states that ‘providers must demonstrate a consistent level of service that meets or exceeds regulatory standards’ [my emphasis].
The new ratings limiter linked to breach of regulations
The original ratings limiter linked to compliance came out in October 2014 when ratings were first introduced for adult social care. It stated that, ‘the overall rating for a service would not normally be better than ‘requires improvement’ if enforcement action is being taken.’
In January 2017, the guidance for inspection staff was strengthened with the inclusion of a new limiter:
‘In addition, the overall rating of a service cannot normally be better than ‘requires improvement’ if there is a breach of regulations.’
This limiter is now included in the new internal CQC guidance document, Inspection guidance – Judgements and ratings. It also features in CQC’s latest version of How CQC monitors, inspects and regulates adult social care services (May 2018).
This change was never the subject of any formal consultation exercise. In addition, it is only being applied to adult social care services, not the NHS and GP practices. If it is to be applied, it should be done so consistently, which is not the case currently.
The main problem with this ratings limiter is that it is being applied in a blunt and arbitrary manner, with no regard to proportionality and professional judgement. As an example, CQC inspected a care home and awarded ‘good’ ratings for safe, effective, caring and responsive. The inspection report commented that the service remained well-led but awarded ‘requires improvement’ for that key question because of a failure to display the previous rating on the provider’s website. The provider had, however, displayed the old rating in the entrance to the home, so the omission was not wilful. Ordinarily, four ‘goods’ and a ‘requires improvement’ would generate an overall rating of ‘good’ but here, because there was a breach of regulation, the overall rating was downgraded to ‘requires improvement’. This was a simple error, capable of easy and swift resolution. It was completely disproportionate and unreasonable to describe this highly successful service as requiring improvement.
The other area causing services that otherwise would be overall ‘good’ to be downgraded is in relation to failures to notify CQC of incidents or Deprivation of Liberty Safeguards authorisations.
Lack of consistency
More widely, it appears to be the luck of the draw whether a concern is judged by an inspector to be a breach of regulation or merely an improvement issue. This is not right, as it allows for personal bias or preoccupation on the part of an individual inspector to influence outcomes.
The other area where services can fall down is where an inspector considers that there are sustainability concerns, such that a service can be no better than overall ‘requires improvement’. By way of example, CQC inspected a care home earlier this year and rated the service ‘good’ for safe, effective, caring and responsive. While it was positive about well-led, it downgraded that key question to ‘requires improvement’ on the basis that the provider needed to demonstrate that the improvements could be sustained while continuing to improve. No breach of regulations was identified and the report expressly stated that the provider was meeting the requirements of the law. Quite bizarrely, therefore, the report awarded the home overall ‘requires improvement’. The service should never have been awarded this rating if the inspector had properly applied the CQC guidance and exercised professional judgement in a reasonable manner. It should have been overall ‘good’. This is not an isolated case by any means.
The key points to take away from this article are as follows:
- Providers and managers should pay due regard to CQC’s guidance on complying with the regulations.
- A service should not simply accept the view of an inspector that an issue amounts to a breach of regulation, particularly as that will affect the overall rating of the service. A decision on breach should only occur after the inspector and their manager have carried out a full legal and evidential review of the concern and referred it internally within CQC to a management review meeting, at which legal advice will be obtained. It should not be based on the opinion of an inspector alone.
- A service should challenge the reasonableness and proportionality of CQC rating decisions where minor breaches of regulations may have occurred.4. Providers and managers should challenge vague sustainability arguments put forward by CQC to justify downgrading a rating.
- Providers should take legal advice in relation to points 2, 3 and 4 to ensure that any challenge is justified and supported by robust legal argument.
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