It was recently reported that an 82 year old woman was permitted to register as a manager of a 25 bed care home for elderly residents by the Care Quality Commission (‘CQC’) in 2010, despite the CQC’s knowledge of her previous conviction for which she received a jail sentence in 2003 after deceiving a client of £9,000 in her previous role as a ‘financial advisor’.
It is reported that it was only a matter of years after leaving prison that she was appointed as a manager of a care home, where she had obtained employment as a carer following the completion of her sentence. This role involved her caring for residents with dementia. In 2014, she moved to a different home where she again successfully registered as manager with the CQC, who were subsequently contacted by a whistle blower earlier this year to question the appropriateness of her registration in light of her previous conviction.
Registered manager – what is the criteria for registration?
When determining whether a person is suitable to be registered as a manager, the CQC must consider whether the person applying is fit to be registered in accordance with Regulation 7 of the 2014 Regulations. More specifically, Regulation 7 sets out that a person is not fit to manage any regulated activity unless: (1) they are of good character; (2) they have the necessary qualifications, skills and experience to manage the carrying on of the regulated activity; and (3) they are able by reason of their health, after reasonable adjustments are made, of doing so. The purpose of this is to ensure that service users’ needs are met; this is done by ensuring that the regulated activities are managed by a suitable person.
Whilst it may not be possible to establish all of a person’s character traits, a registered provider is responsible for compiling all relevant and accessible information to assess whether a manager is of ‘good character’. A robust process should be followed to take into account their honesty, trustworthiness, reliability and respectfulness. This includes a consideration of the matters outlined in Schedule 4, Part 2 of the 2014 Regulations, namely whether the manager has been convicted of any offence, or whether they have been erased, removed or struck-off a health and social care regulator’s professional register such as that of the NMC, GMC or HCPC.
Any matters which arise from this process should be fully investigated and any appropriate action taken. If this results in the manager retaining their position, the provider should ensure that the reasons for this decision are noted in full and in some circumstances, a provider may consider that a risk assessment may be appropriate.
In this recent case, the CQC reportedly advised the whistle blower that: “Individuals with a criminal conviction such as theft from an elderly person should be on the barring list as held by the Disclosure & Barring Service. We would like an opportunity to investigate this further.” However, it is reported that shortly after, the CQC stated that it was satisfied that it had carried out a detailed and rigorous investigation into the circumstances of her conviction and furthermore, that she had been open and honest with both the CQC and her employer. The CQC also stated that it had sought legal advice before proceeding with this registration decision.
Some may argue that this decision was arbitrary and goes against the core aim of the CQC as an independent regulator, namely to protect and promote the well-being of vulnerable members of society. This case, in fact, makes it clear that a conviction is not an absolute bar to a person obtaining registration with the CQC and being deemed fit to manage any regulated activities.
However, Andrea Sutcliffe, the current chief inspector of adult social care, has recently advised that around 37 applications are rejected by the CQC every month. In this case, she stated that the CQC had adopted a ‘rigorous approach’ and noted the circumstances surrounding this case – the conviction was spent; the offence occurred during a period of difficult personal circumstances; and she was deeply ashamed of her actions. It was also noted that she had been open about this conviction with her employer and the CQC and her employer had provided a supportive reference pertaining to her good character.
It is clear that the length of time that had passed since her conviction in 2003 had played a huge role in the CQC’s decision making process as it was some seven years prior to her first application for registration was made. During this period, there are no reports to suggest that she had received any further convictions or that there was any further evidence to suggest that any such conduct was repeated. If, however, the conviction had been more recent, or she did not have any supporting evidence from her current employer of her good character, it would be reasonable to assume that the CQC could have potentially reached a different decision.
Necessary qualifications, skills and experience
When assessing a person’s skills, qualifications and experience, the CQC look into whether the proposed manager has a full and adequate understanding of the requirements of the associated legislation, particularly the Health and Social Care Act 2008; the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 [‘2014 Regulations’]; and the Care Quality Commission (Registration) Regulations 2009. They must also be able to articulate and demonstrate how they will manage the relevant regulated activities in line with this legislation. Clearly, being a manager of a registered location is not an easy task; it requires someone with a good knowledge of the care sector who is able to translate the law into practice.
At this stage, the CQC will look at a person’s previous management record and the inspection history of those services they managed, including the current service they are applying for. Any inadequate or requires improvement ratings that have been awarded during their period of management or any failings that have not been suitably remedied by them in their position as manager, will often impact negatively on a registration. Issues such as these are usually addressed in the applicant’s ‘fit person’ interview, with the applicant having to justify any previous failures and provide assurances to the CQC of how they will sustain compliance at the new location moving forwards.
In this recent case, the applicant had not been a manager before her first application, but it is reported that she had worked in the care industry as a carer for a few years after serving her custodial sentence. Often, the completion of a Level 5 Diploma in Leadership for Health and Social Care or a similar course is an advantage, particularly where a person has no previous management experience, and some employers set this as a requirement for any management position.
Whilst we do not have access to the CQC’s internal thought processes and investigations, what is clear is that the CQC’s registrations are now much more stringent than they were in 2010, shortly after the CQC was established. In any event, if anything, this case demonstrates the importance of being open and honest with the CQC during the registration process, as well as any employer, where there are any circumstances which could potentially result in the refusal of a registration. Being upfront with the regulator and working collaboratively with them, providing any information pertinent to an application, is only likely to increase your chances of obtaining registration.
If you require any assistance with an application for registration to the CQC, or your application is refused, we have a dedicated team of specialist CQC lawyers who are on hand to assist you. Call us now on 01616 966 229.