On 15 October 2024, two reviews into CQC’s operational effectiveness were published. Both found CQC to be failing in its core duties and objectives.

Rather than summarise the reports (many lawyers have done that already), I intend to pick out what I consider to be major concerns highlighted in the reports.

For those wanting to delve more deeply, the links to the two reports are set out below, as well as CQC’s response to them.

Review into the operational effectiveness of the Care Quality Commission: full report – Dr Peny Dash (15 October 2024)

Review into the operational effectiveness of the Care Quality Commission: full report – GOV.UK

Review of CQC’s single assessment framework and its implementation – Sir Mike Richards (15 October 2024)

Review of CQC’s single assessment framework and its implementation – Care Quality Commission

CQC’s response to the two reports

CQC responds to reviews by Dr Penny Dash and Professor Sir Mike Richards – Care Quality Commission

 

Regulatory anarchy explained

I have been working in the area of health and social care regulation since 1992. Over the years, I have acted for regulators and providers. Until November 2023, there had always been a certain rhythm and order to my working life. Yes, regulation has always been something of a blunt instrument and, typically, reactive in nature but, generally speaking, there has always been an underlying order to the work of the regulator, in its various manifestations.  It has never been perfect, and there have been some spectacular regulatory failures, but for the most part it has worked and, at the very least, it has provided a safety net in the most dire cases.

That natural regulatory order was shattered in November 2023 with the introduction of CQC’s Single Assessment Framework or SAF.  The level of failure is like nothing I have ever encountered in my professional career and is chillingly described and examined in the two reviews published on 15 October.

With the SAF, regulation has become chaotic, unpredictable, obscure and increasingly sclerotic, typified by major delays in drafting and publishing inspection reports. Regulatory anarchy is the only way to describe it.

As if such a major change as introducing the SAF wasn’t enough on its own, in its wisdom CQC at the same time introduced a new regulatory platform for its own staff and a regulatory portal for providers which have been unmitigated disasters. Oh, and to top it all, CQC decided to implement a major organisational restructuring which has further undermined its ability to meet its statutory obligations.  Splitting the roles of inspectors into assessors (off site) and inspectors (on site) was especially bizarre and unworkable. Fortunately, CQC has decided to reverse engineer the organisational changes under pressure from all quarters, as never before.

Regulatory anarchy described

Every inspection/assessment under the SAF that I have advised on recently has involved multiple legal and procedural issues which demonstrate the regulatory anarchy we are living with.  Examples I have encountered recently include the following:

  • Not reviewing all the quality statements under a key question that had been rated Requires Improvement at the previous inspection. This matters as it is contrary to the commitment given publicly by CQC’s former Chief Executive, Ian Trenholm, in March 2024 that moving forward all quality statements would be assessed under key questions previously rated Requires Improvement or Inadequate.
  • Not reviewing all the evidence categories under particular quality statements.
  • Scoring evidence categories in relation to People’s Experience even though no feedback had been obtained from people about the areas in question.
  • Scoring evidence categories as 1 (inadequate) or 2 (requires improvement) when their content is completely positive.
  • Repeating the same issue several times under a quality statement, a key question and across the whole report.
  • Alleging breaches of regulation without specifying what evidence is being relied on.
  • Rating Well-led as Inadequate when the score was 39% which is Requires Improvement under CQC’s published guidance.
  • A lack of detail in the draft assessment reports as well as generalised statements of a prejudicial nature which have no evidential justification.

 

I could go on and on. These are mere examples from a relatively small number of cases I have advised on, all since Penny Dash’s interim report in July which found CQC to be failing miserably as a regulator.

Put simply, the quality of inspections has deteriorated significantly since the introduction of the SAF and there is a sense that local teams are making up their own rules. The abiding feeling is that there is no one in charge.

It saddens me to say this as I believe in the social good that comes from effective regulation and inspection.  CQC needs to work as an agent of public protection and as a promoter of best practice and innovation.

 

Prevarication

In the summer I participated in a webinar with Simon Cavadino where we called for the halting of SAF assessments and a return to the previous system of KLOES and ratings characteristics. Sir Mike Richards, in broad terms, appears sympathetic to this view.  While his proposed solution is a little obscure, he does talk about developing KLOEs and ratings characteristics linked to the quality statements rather than there being a complete reversion to the old framework.

Our proposed course of action would at least have given time for reflection on what had gone so wrong at Board and executive levels within CQC and allowed for a proper remedial plan to be introduced with timescales.  In the meantime, new inspections would have proceeded on a firmer footing given the previous framework was broadly functional.  However, nothing seems to have happened since July. Instead, the SAF has continued to be applied in the knowledge it is unworkable. This is little short of scandalous.

Let me give you an example. In the summer, CQC first mooted the idea that it might stop scoring evidence categories.  On one occasion, I read an article from a senior CQC manager saying this would happen immediately.  Sir Mike Richards has recommended this should happen and CQC says it agrees with his recommendation and will be implementing it.  Indeed Sir Mike Richards goes further and says that ultimately the evidence categories should be scrapped altogether. However, on 24 October 2024, I obtained the latest copy of CQC’s internal Regulatory Assessment Handbook for inspectors which continues to apply the scoring of evidence categories as part of the framework. Indeed, this Handbook has changed very little since January 2024 when I obtained the first version.

 

The need for rapid change

CQC has committed to rapid change, although no plan with a clear timetable has been issued yet.

I believe the case for halting the SAF right away is even more compelling now than it was in the summer. Why might that be?  Well, the errors in inspection listed above are concerning but not nefarious in nature. There is no intent to manipulate the system. It is incompetence, not a conspiracy to cause mayhem. However, I have come across several cases lately where there is a clear manipulation of the scoring process – CQC calls it moderation – where CQC tries to get the end result it wants when the scoring says something different.  As an example, CQC set up quality assurance panels in June this year to consider moderating quality statement scores downwards, typically where there have been breaches and the SAF still gives a rating of Good.  The result is scores are being modified down to 1s at quality statement level.  I believe this moderation also applies at the assessment stage as well.  This shows the system is broken and that manipulation of scores is taking place to “correct” perceived problems arising from scoring. Sir Mike Richards alludes to this “mechanism” in his report as follows:

“There was virtually no support for the use of scoring for each evidence category. Although scoring may seem superficially logical, it precludes the use of judgement about the rating of a whole key question, or even for a quality statement. It was described to me as a ‘pseudoscience’. It also creates a risk of gaming to get the ‘right’ overall rating. Scores that are at a borderline (e.g. between good and requires improvement) can feel unfair, especially if the negative findings could be corrected and validated rapidly (e.g. between inspection and report).”  (page 13)

I believe there is gaming happening within CQC to get the “right” rating. Regulation should not operate on such a basis. It should be open, clear, rational and accountable.

 

The Executive Team at CQC

There is no doubt there has been a momentous failure at Executive Team level.

The two review reports confirm this to be the case.

Sir Mike Richards writes:

“No formal consultation was undertaken once the single assessment framework had been developed, and very little piloting was undertaken before rollout in December 2023.” Page 19

 

Dr Penny Dash also observes:

“…the review has found that, across the executive team, few were able to describe the 34/6 framework (34 quality statements and 6 evidence categories), the rationale for prioritising particular quality statements in each sector, the rationale for which evidence categories are used for different quality statements, the way in which ratings are calculated and so on. This should be widely understood in CQC irrespective of role or background.”

I think these excerpts from the reports speak for themselves. I don’t need to comment on them at all.

Quite what the CQC Board were doing is another debating point but that is for another day.

 

Conclusion

It seems to me there are two broad solutions:

  • Revert back to the previous system which was applied successfully up to 2019.
  • Adapt the current system by scrapping evidence categories altogether and ending scoring of quality statements with a return to professional judgement as the basis for assessment. CQC would need to develop KLOEs, and ratings characteristics linked to the quality statements, akin to the previous system. But if you are going to do this, you might as well revert to the old system.

Under both approaches, CQC should define the minimum frequency of performance assessments which is a duty imposed on it by the legislation. CQC has ignored this duty since the pandemic, but it needs to be addressed immediately.  Indeed, I would go further and return to statutory minimum frequencies of assessments/inspections which was the case until CQC arrived on the scene.

Longer term, ratings should be abandoned as is due to happen with Ofsted. Instead, there should be a balanced scorecard approach. Dr Penny Dash appears to support this.

There should be a renewed focus on compliance i.e. whether statutory requirements are being met or not. At the end of the day, if a provider is complying with statutory requirements, they must be a good service.

Relationships with providers needs to be restored and CQC needs to start listening to its staff who seem to have been largely ignored in all of this. CQC also needs to listen to providers and embrace challenge as a means of learning. The tendency of CQC has been to act defensively and dismiss complaints.  Even worse, there is a perception on the part of providers that if they challenge CQC, they will suffer. Sir Mike Richards references this in his report in the context of feedback from NHS executives as follows:

“The culture among inspection teams has changed for the worse. There is now no sense of partnership. Inspectors are only looking for what is wrong – not for evidence of what is good or innovative. The inspection teams can instil fear, warning what if findings are challenged, the outcome will be worse.”

So there is work required to improve the culture within CQC.

Organisationally, a new executive management team needs to be appointed to sort out the mess, overseen by an effective Board, and backed up by proper oversight from the Department of Health and Social Care.

The challenge is immense but is achievable. CQC came back from the brink in 2013 after Winterbourne View. It can do so again with the right management, the right vision and the blessing of a degree of humility borne of temporary failure.

 

About the Author

Neil Grant

Partner