The consequences of failing to adhere with Care Quality Commission’s regulatory framework for registration
To ensure the statutory responsibility was nevertheless fulfilled, the CQC conducted video conference calls with registered managers to ensure that it could still check in and satisfy itself that care homes were operating as required. Whilst halting routine inspections during the height of the pandemic was appropriate and necessary, this also restricted the CQC’s ability to carry out its statutory responsibilities, as it was unable to physically examine what was going on in care homes.
The CQC has now advised that it will return to normal operations which will include recommencing its unannounced routine inspections. It is without doubt that these inspections are crucially important to maintaining standards and protecting care home residents, however many are concerned about the potential risk of infection given the on-going spread of COVID-19.
Care home providers are rightly concerned that returning to routine unannounced inspections, when it would appear that a second wave with rapidly increasing numbers of infections is taking place, puts providers in a difficult position whereby they could potentially be allowing the virus into care homes and causing the further spread of the virus. In response, Kate Terroni, Chief Inspector of Adult Social Care at the CQC made the following statement:
"Most care homes are doing a fantastic job, but if we have concerns it's only right that we go and check that people are safe and take action to protect them where they are not. Our staff undertake a full risk assessment prior to any site visit, have completed infection prevention training and wear full PPE at all times."
"We are aware that a small number of adult social care providers have sent policies and guidance to our inspectors in advance of inspection. Some of these policies are attempting to restrict how our inspectors do their job and could cause risk to people using the service.
Some of the areas these policies cover are: requesting all inspections to be announced, limiting the number of inspectors on site, restricting the use of toilet and hand washing facilities, and requesting a negative Covid-19 test before an inspection.
Attempts to prevent or limit our ability to fulfil our statutory responsibilities are unacceptable."
We recognise that it is of course a difficult balance for the regulator to strike in the current climate. Whilst it is entirely appropriate for a statutory regulator to carry out its responsibilities to protect and safeguard service users, these are ‘unprecedented times’ and any outside visits from any individual could place some of the most vulnerable members of the community at risk of infection.
A careful balance must be taken to ensure that providers continue to meet their obligations and the CQC is integral to ensuring that takes place. In turn, providers must, as they have for this entire period, continue to take care of service users. Simply refusing an inspection is not appropriate; though ensuring that inspectors take proper precautions and are wearing PPE is essential.
As the CQC has rightly highlighted, any attempts to limit its ability to carry out its statutory responsibilities may be unlawful. Providers who refuse visits or prevent inspectors from conducting their visit may face regulatory action from the CQC.
If you have concerns about your responsibilities and a potential CQC visit, we have a specialist team that can advise you.
Sophie Bolzonello is an Associate, Australian Qualified, in Kingsley Napley’s Regulatory department. Sophie specialises in advising regulated professionals on compliance, in investigations and in respect of enforcement action. She also advises regulators on policy, governance, prosecutions and litigation.
Shannett Thompson is a Partner in the Regulatory team. She is a highly experienced lawyer taking the lead in defending health professionals before their regulatory bodies including the GMC. She has substantial experience in advising individuals in relation to their regulatory obligations in the wider context.
Associate (Foreign Qualified Lawyer)
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