CQC ratings to be extended to independent healthcare services
Its role is to ensure care services provide safe, effective, and high-quality care, and to monitor providers and encourage them to improve the services they provide.
As of December 2020, the CQC regulates approximately 15,500 care homes, 1,400 hospitals, 590 ambulance services, 8,700 GP services, 11,000 dentists, 11,000 home care services as well as other community based care services. Individuals within these services are also regulated by various professional bodies, including the Health and Care Professions Council, the Nursing and Midwifery Council, the General Dental Council, the General Medical Council and more.
The CQC however looks at the overall safety, effectiveness and quality of care that such services provide and can take regulatory and enforcement action against the service itself for any failures, while the professional bodies mentioned above, will deal with individual conduct and professional failings.
Breaking it down, the CQC’s role is to:
The CQC carries out their role and functions through a variety of measures available to it which can include warning notices, civil or criminal enforcement.
One of the measures to ensure safety and quality of services is that directors of registered providers must be “fit and proper”. This requirement is contained in Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“Regulations”). The obligation however does not extend to providers who are individuals or partnerships. All providers registered with the CQC must assure themselves that all directors who are responsible for delivering care to service users are fit and proper – in other words, they must be able to diligently carry out their responsibility to ensure the quality and safety of care. This forms part of the providers’ duty to ensure the service is well-led, which is one of the focus points during an inspection. Not only does the CQC monitor compliance at the point of registration, but it is an on-going duty and can lead to enforcement action where it is not met.
The reason for imposing this obligation is because the registered provider is solely responsible for appointing, managing and dismissing directors, like they are with employees.
The fit and proper requirements imposed on directors are in place to ensure that those who hold the overall responsibility for quality and safety of care (such as care homes, GP practices, hospitals, dental clinics etc.), are considered people of good character with necessary qualifications, competencies and skills, among other things.
Fitness and propriety requirements can differ depending on the regulator or government body you are bound by. In the health and social care sector, specific to the CQC requirements, fitness and propriety means the following:
Providers need to ensure that they have systems and processes in place which are designed to ensure all new and existing directors are, and continue to meet the fit and proper person requirements set out in Regulation 5. Such systems should also ensure that any appointments do not conflict with the unfitness criteria set out in Schedule 4 to the Regulations.
In practice this means either using purpose built software to ensure each of the checks required is completed, or having Human Resources (“HR”) procedures in place that can make sure each of these matters is checked off. Providers must ensure the directors continue to meet the requirements and can do so by having a process in place to carry out periodic checks in accordance with Regulation 5. Alternatively, or in tandem, the inclusion of a provision within the director’s contract or a HR policy requiring declaration of any issues which may call into question fitness and propriety is a good tool. Best practice would include mandatory re-checks on a regular cycle i.e. annually.
It is without a doubt that providers will, to a certain extent, be reliant on directors to provide them with accurate information to satisfy the fit and proper criteria in Regulation 5. The CQC recognises this, so if the CQC is concerned about an individual’s appointment or continuing position, the CQC will instead look to ensure the provider made every reasonable effort to assure itself about the applicant’s fitness and propriety rather than simply making a decision that the provider has breached the requirements of Regulation 5.
Providers very clearly hold significant responsibilities to maintain their CQC registration, for the very important reason that public protection in a caring role is integral. Establishing and cementing practices for on-boarding new employees (in particular new directors) is crucial and will serve providers well in years to come. These practices can then be used for periodic checks to reassure providers that they are continuing to comply with their obligations.
Shannett is a Partner in the Regulatory Team providing regulatory advice predominantly in the health and social care sector. She is also a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act.
Sophie is an Associate, Australian Qualified, in the Regulatory department. She has extensive experience working for professional regulators and organisations concerning statutory compliance and advising on and prosecuting regulated professionals in the building and health sectors.
 Directors include interim and permanent board directors, board members and equivalents, those who are responsible for delivering care, including associate directors and another individuals who are members of the board regardless of their voting rights
Associate (Foreign Qualified Lawyer)
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