Introduction

On Friday 1 May, CQC published details of what it calls its Emergency Support Framework (“ESF”), setting out how it will interact with providers and managers during the pandemic and for an undefined period thereafter. I am pleased to see this at long last as I have been asking CQC for sight of it for weeks. It seems that is it is going live this week in relation to adult social care services.

In simple terms what does it involve?

Details are on the CQC website. In essence, it is very simple. The inspector will call the manager of the particular service and engage in a Q&A session, focussing on how the service is coping during the pandemic. The answers (plus any wider intelligence CQC holds about the location) will be used to judge whether the service is “managing” or “needs support.”

When is a regulatory process not a regulatory process? When CQC says it isn’t

What concerns me is that CQC says the “conversation” with managers is not a regulatory process. According to CQC, the ESF is not an inspection and will not lead to a rating.  By taking this line, providers and managers will not be able to submit factual accuracy comments on the “summary record” of the conversation that will be supplied by CQC. What if it contains errors or is incomplete? Providers must have a right of reply in such circumstances.

It is apparent that the conversation with the manager is part of an assessment or review of the performance of the particular service and it may lead to an inspection and enforcement action.  It is therefore a regulatory process, nothing more, nothing less. CQC is plainly wrong on this point.

The questions that will be asked by CQC

CQC has identified the broad areas that will be the subject of discussion:

  • Safe care and treatment
  • Staffing arrangements
  • Protection from abuse
  • Assurance processes, monitoring, and risk management

But why not share all the questions in advance so the manager can prepare for the call? GPs know the questions that will be asked of them by CQC as part of their annual telephone review.

I assume there will be questions about PPE, COVID-19 infections, infection prevention and control and stocks of medicines. However, it would be far better if the questions were made clear before the conversation (1) in the interests of fairness given it is a new process and (2) to ensure the maximum benefit possible is derived from the call.  After all, a manager’s time is precious at the moment.

Prioritising calls

Not all services will get a call from CQC. It will be risk assessed. As CQC says on its website:

“If the inspector is confident that there is a lower risk level, they can decide not to call you…” A service with a higher risk level will have more contact from their inspector, as we will continue to monitor and engage with you until the emergency period is over.”

So if you get a call from CQC in the next few weeks, it is because CQC believe you are in the higher risk category.

To be absolutely clear, what the manager says will be recorded and used to judge performance and compliance “to support our regulatory planning during and beyond the pandemic.”   The information will also be shared with third parties.

Inspections during the pandemic

I am concerned that if there is an inspection (by which CQC means a site visit), adult social care providers will get targeted inspections whereas the hospital and primary care sectors will get focused inspections. Why the difference?  What is meant by a targeted inspection in this context exactly? CQC needs to explain this clearly to the sector.

Conclusion

It is a case of CQC making up its own rules again. Other examples include special measures, setting Requirement Notices as an enforcement step and CQC giving itself a market shaping role in the LD/autism sector. No doubt it will point to the pandemic to justify departing from its normal processes.

I am all for effective and flexible regulation at this difficult time, but it needs to be based on the principles of best regulation which include transparency, accountability and consistency under the Legislative and Regulatory Reform Act 2006 of which CQC is a signatory.

Postscript

I have made a Freedom of Information request to CQC asking for the methodology underpinning the ESF, including any rules based or scoring system that will be used to assess the performance of providers as part of the ESF; and any internal guidance issued to inspectors regarding the operation of the ESF. Hopefully CQC will provide this documentation swiftly to me and ideally publish it on its website without delay.

About the Author

Neil Grant

Partner & Health and Social Care Solicitor

D.D: 01483 366069

Tel: 01483 451900

Email: neil@gordonsols.co.uk