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The CQC's consultation: a more flexible and responsive approach to regulation?

View profile for Laura Hannah
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Whilst the CQC’s core regulatory role has not changed, the pandemic has undoubtedly highlighted the need for the CQC to change its approach to the way in which it regulates, in order to allow more flexibility and to place themselves in a better position to deal with any future challenges that may arise.

During the course of the pandemic, the CQC suspended their usual routine inspections and sought to only carry out focused or targeted inspections where serious risks or concerns were identified. In the interim, they have continued to monitor services through the use of their Emergency Support Framework and Transitional Regulatory Approach and have gathered information remotely, whilst also carrying out more focused and targeted inspections to minimise the inspectors’ time spent physically on a service’s premises.

However, prior to the start of the pandemic, the CQC followed a schedule of inspections with care providers being subject to routine comprehensive inspections every six to 30 months from their last published report, depending on their previous ratings. Those inspections were always carried out by way of a physical site visit to assess the quality of care provided and to determine the ratings of the service. Inspection judgments were also supported by information obtained from a variety of other sources, such as feedback from the public and information received from other stakeholders, for example.

Over the years, the rigidity of this inspection schedule has often caused frustration for providers where their rating(s) in one or more domains has affected their overall rating and impacted on other factors, such as their funding, contracts and the public’s perception of the service, which in some cases can have longer lasting reputational damage. The CQC have often been considered to be very inflexible and more reactive rather than proactive and responsive, only seeking to act outside of the usual inspection timetable when they received information about a potential risk or concern. However, others have preferred the certainty that a fixed schedule offers and may argue that without this, there is no clear framework or timeframe in which to prepare for or expect an inspection. There is also an argument that a clear, structured schedule instils fairness and proportionality into the inspection process, but these are only some of the arguments for and against the current procedure.

The pandemic has, however, developed the way care is provided and information is shared, with an increased use in technology and more services being provided remotely. In addition, there has been a more flexible approach to the way care is assessed, with a particular shift in focus from on-site inspections to more remote assessments. These changes have informed the CQC’s proposals for more ‘flexible and responsive regulation’ moving forwards.

Primarily, the CQC proposes the following two changes for adult social care inspections:

  1. To assess quality and rate services using a wider range of regulatory approaches, not just on-site, comprehensive inspections; and
  2. To have a more flexible, risk-based approach to assessments, rather than a fixed schedule of inspections.

The CQC propose to move away from the typical routine ‘inspection’, which are carried out on-site to assess all five key questions (safe; effective; caring; responsive; and well-led), to a more targeted and ongoing review of quality, focusing on a wider selection of sources and tools without the need for on-site visits and thus providing more flexibility. The CQC state that this would enable them to update ratings more frequently when there are changes in the quality of care provided, by making use of readily available information and being less reliant on physical on-site inspections, which can be time-consuming. This proposal is also made on the basis that this would remove the rigidity currently experienced by the current inspection schedule.

This approach will arguably rely more heavily on an inspector’s professional judgment and will require a significant update to the CQC’s current assessment frameworks and guidance to ensure that all providers are treated in a fair and proportionate way, and are afforded the same opportunities to update their ratings. There would also still need to be a factual accuracy process to enable care providers to challenge the accuracy and completeness of the evidence upon which any review of ratings is based before those ratings were published.

Although, it is acknowledged within the CQC’s consultation that site visits are a key part of their assessment activity as they enable inspectors to observe the culture of a service and the care provided first hand, as well as to verify any feedback received. As such, it is intended that comprehensive, on-site inspections would still be undertaken where information in relation to a significant risk or concern is received and to protect the rights of vulnerable people.

In addition, providers will be familiar with the usual Provider Information Requests (PIRs) which are usually sent to providers before a comprehensive inspection, requesting information or documentation prior to the inspection. These PIRs can often be quite time consuming and burdensome for providers. The CQC instead propose to use more ‘targeted and proportionate’ requests for information, alongside targeted inspections.

None of these changes are set in stone yet and the CQC’s consultation on these changes remains open until 5.00pm on Tuesday 23 March 2021 if you want to have your say. There is no doubt that the past year has taught us all to be more flexible, to utilise technology in a more meaningful way and to adapt to changes more quickly and effectively in order to weather the storm and survive in this ‘new normal’. Whilst change can lead to more positive outcomes, it is also important that we ensure that any changes made work for everyone involved and ultimately, that regulation is fair and proportionate across the care sector.

We have a team of specialist CQC solicitors who regularly advise care providers on their inspections, draft inspection reports and ratings. You can speak to one of our specialist CQC solicitors now on 0161 696 6250 or by using our online enquiry form.

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