I dealt with a case recently where CQC had refused the application of an organisation to be the provider of a care home solely on the basis of a single regulation: Regulation 5 of the Fundamental Standards – the Fit and Proper Person Requirement.

CQC concluded the sole director of the organisation was not a fit and proper person to hold that position, as far as CQC’s statutory remit was concerned.

The Notice of Proposal to refuse the application alleged the evidence demonstrated there has been “repeated tolerance of poor practice, or failure to promote good practice, leading to departure from recognised standards, policies, or accepted.” This wording derives from page 15 of CQC’s Guidance for providers and CQC inspectors on Regulation 5: Fit and proper persons: directors (January 2018).

Notice of Proposal

In the conclusion of the NOP, CQC stated “We are not satisfied due to the somewhat poor regulatory history…this won’t have a negative impact on service users and place them at risk of harm and abuse” [my emphasis]. A few services in the Group were rated Requires Improvement, but others were rated Good and none were in special measures.

I wrote to CQC contending that if CQC stood by its judgement that the director was unfit on the basis of a “somewhat poor regulatory history”, a multitude of directors across the country would be unable to remain in post. CQC would need to contact organisations with a few services rated “Requires Improvement” stating that it considered their directors to be unfit. I added that I was not aware of CQC doing this. Indeed, it would be the wrong thing to do as Regulation 5 does not support such an approach. It is focused on misconduct or mismanagement which is genuinely serious. I am not even aware of CQC making judgements under Regulation 5 in relation to organisations rated Inadequate and/or subject to serious enforcement action.

As well as relying on historic inspection data, CQC had not analysed its own inspection reports at all carefully. The reports of all the care homes, including those rated Requires Improvement, were predominantly positive. Where specific concerns had been identified, the reports highlighted a commitment on my client’s part to address those matters.

My experience

My client had asked CQC to return to these services rated Requires Improvement to carry out inspections so that it could demonstrate compliance. However, CQC had not returned for some considerable while because its ongoing direct monitoring activity was not highlighting any concerns. While it was positive that no concerns had been identified by CQC, my client was prejudiced by the fact CQC had not been back in to reinspect.

The director in question had always taken steps to put in place appropriate management support across the services. I contended that the director was fit to be a director under Regulation 5. However, the director was mindful of the need to get the care home registered as a matter of priority given there was a local need for the service. It would also be a valuable contributor to the local economy and significant employer within the area. Therefore, this person took the selfless decision to resign as director to enable registration to proceed as swiftly as possible. However, I advised my client in emphatic terms that such a decision would be a commercial and pragmatic one and there was nothing to prevent this person from remaining as a director.

Outcome

CQC withdrew the Notice of Proposal to refuse the application on the sole ground the director had resigned and been replaced by a senior manager. CQC failed to concede it had got anything wrong in this case. I am left thinking what sort of society have we become when a decent and committed person is unjustly branded unfit by a regulator who then felt obliged to resign as director to get the registration through in the interests of the wider community.

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About the Author

Neil Grant
Health and Social Care Lawyer