What rights do employees accused of bullying have?
On 27 May 2021, the Care Quality Commission (the “CQC”) launched its new strategy which 'champions regulation driven by people's experiences of care'. The central tenet of the strategy is an 'unremitting focus on safety, requiring a culture across health and care that enables people to speak up and in this way share learning and improvement opportunities'.
The new strategy proposes 2 core ambitions – assessing local systems and tackling inequalities in health and care – both of which underpin 4 more specific themes, which the CQC will strive towards in terms of how it works:
The strategy outlines how the CQC will do more to prioritise listening and acting, empowering people, and prioritising the public and local communities. A clear focus is described in streamlining the feedback process – from making it easier for people, families and advocates to give feedback on health and care services to more efficiency in the way the CQC records, analyses and identifies areas of concerns arising from feedback. Tackling inequalities feeds into this, with the strategy proposing to implement better tools to enable the CQC to identify and engage with wider sections of the public and local communities, such as the most vulnerable and disadvantaged in our society.
Alongside gathering more experiences from a wider range of people, the strategy proposes greater clarity from the CQC in relation to feedback it receives; how particular feedback has informed its view of quality and the actions it might decide to take as a result. From our perspective as lawyers, this is particularly important. All too often we act for clients in the health and social care sector who approach us frustrated as to the lack of clarity provided by regulators relating to the feedback received and how that feedback has informed the action it takes. It is pivotal, and we are pleased to see this addressed in the strategy, that providers in the health and social care space are given ample opportunity to respond in an appropriate and proportionate way to feedback, which requires clear and directed disclosure on the part of the regulator.
Doing more to reach different groups of people and raise public awareness of the CQC and its role as a regulator also features prominently, with an aim of empowering people and providing greater transparency on how the CQC views what is good and outstanding care, to embed a shared view of quality.
A key focus draws upon the recent Government white paper on Health and Social Care reform, requiring increased collaboration between the CQC as regulator and the local community systems and services it regulates. The CQC’s work on this area will operate via the Health and Social Care Bill to encourage a shift towards more integrated services.
Regulation is also another factor within the strategy which is of particular importance to the clients we work for.
The CQC cites that it aims to use its regulatory powers in a smarter, more proportionate and consistent way to make the right decisions and take the right action at the right time. Traditionally, the CQC’s method of quality assessment has predominantly involved carrying out routine on-site inspections to observe and rate the care people receive. Its new strategy suggests an intentional move away from reliance on a set schedule of inspections, towards an approach that is more flexible and targeted.
This marks quite a considerable change in approach by the CQC, which if adopted correctly, could make the regulatory framework far more favourable for providers in the health and social care sector. The present inspection model has a significant margin for error as whilst it is informed by documentary evidence and feedback, amongst other matters, it can only realistically provide a snapshot based on what the inspectors see and hear during the process.
The new approach envisages greater emphasis on the CQC conversing and engaging with services and local systems around quality in a much more on-going fashion, and carrying out on-site inspections only when there is a clear need to do so. This may happen when, for example, the CQC deems it necessary to respond to risk, where it has limited data or a specific need arises for more information. While recognising that some types of services will justify face-to-face visits more often, the focus of on-site inspections will be less on monitoring activity and analysing paperwork; rather, such visits will be utilised more effectively to focus on talking with service users and staff. The proposed outcome of this new way of assessing quality will be more meaningful ratings.
The shift away from routine and administratively burden-some inspections will be complemented by better data integration, which the strategy proposes to achieve via the CQC developing better digital platforms, incorporating “innovative analysis, artificial intelligence and data science techniques”, and by it coordinating a more concerted effort on effective data collections. However, the strategy assures it will make easier for service providers to work with the CQC and will actively seek to minimise unnecessary duplication and workload in how it collects data and how service providers submit data. This will be particularly important to safeguard and will need to be bolstered by improvements to share data safely, efficiently, and digitally.
We are noticing a distinct move by regulators in many sectors attaching greater importance on organisational culture, and the CQC’s new strategy explicitly demonstrates this. The strategy notes “having the right organisational culture is crucial improving safety” and sets out how the CQC will take a more active regulatory role in this regard. Central to this strategic priority is the recognition that “in a strong safety culture, risks aren’t overlooked, ignored or hidden – and staff can report concerns openly and honestly, confident that they won’t be blamed.”
The strategy sets out how the CQC will be looking more closely for cultures which have learning and improvement at their core, that its assessments of safety will specifically include checking for open and honest cultures in which staff are able to speak up about safety issues, and that it will expect service providers it regulates to demonstrate that learning and improvement are the primary response when anyone raises concerns. The CQC will also focus more on the types of care setting where there is a greater risk of a poor culture going undetected, acknowledging that people in particular services are often afraid or unable to speak up for themselves and more likely to be failed by a poor culture.
Service providers should therefore expect greater scrutiny from the CQC around culture and, where concerns are raised, will need to be able to demonstrate what action they will take to learn and improve and how they will go about implementing such actions. The strategy indicates a pragmatic and determined approach will be adopted, suggesting the CQC will use its powers and act quickly where it deems improvements to take too long or where the changes proposed by a service provider under investigation for poor culture will not be sustainable: “We’ll take action where services are unable to identify systemic issues in their own organisational culture or fail to learn lessons from widely publicised failures happening across health and care.”
Facilitating continuous improvement features as the final core element of the CQC’s new strategy.
Feeding into the Government’s wider national proposal for reform in Health and Social Care, the CQC’s role is highlighted in spotlighting priority areas that need to improve and empowering service providers to improve.
We expect the CQC to be more heavily engaged in collaborating with local services and systems and offering greater clarity on the standards it expects. A new programme of activity is also suggested to drive change, involving the publication of new guidance, tools and frameworks to inform and support good practice. This is likely to include examples of what works based on findings from the CQC’s in-depth reviews, and more activity around research it undertakes to drive evidence-based improvements in practice. While specifying that the CQC will play more of an active role in setting clear expectations, enabling access to support, and empowering services, the strategy is clear that it will retain its core regulatory and enforcement role where it observes poor care.
As expected, the CQC’s new strategy aligns with the Government’s proposals published earlier this year to reform the Health and Social Care sector, particularly around ensuring patient safety and promoting quality in care services. The strategy describes a number of key shifts the CQC will adopt, both in terms of its regulatory role and its approach in performing its regulatory function – we welcome the move towards a more pragmatic and proportionate approach by the regulator.
A move towards more flexible and targeted assessments of quality is set out, representing a shift away from across-the-board routine on-site inspections to a much more continuous on-going monitoring of activity and service quality. This will be complemented by a concerted effort by the regulator to coordinate more frequent collections and submissions of data from those it regulates, supported by the implementation of more modern digital platforms to make it easier and more efficient for such data to be submitted, aimed to minimise duplication and the creation of unnecessary workload. The strategy also makes clear the CQC’s increased interest in regulating poor culture and its determination to scrutinise and take action where it observes this to be happening.
Greater engagement and collaboration underlie many of these changes. A clear intention is communicated that the CQC will undertake more policy and research activities to improve its accessibility to people and communities. Importantly, the strategy proposes the future sharing and publication of more guidance on the standards it expects and the provision of evidenced-based knowledge and information which will be critical to those it regulates in terms of what good practice looks like and how it can be achieved.
Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising regulated individuals, businesses such as clinics and care homes and students in respect of disciplinary investigations. She is 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. In addition Shannett has built up a significant niche in advising investors and businesses in the cannabis sector.
Lucinda Soon is a professional support lawyer in the Regulatory team, and is responsible for knowledge management and practice development. Her work focuses on leveraging the team’s collective knowledge and expertise, ensuring that know-how and current and emerging regulatory developments are identified, evaluated, synthesised, and shared. She is particularly experienced in the adoption of technology to aid the delivery of these outcomes.
Professional Support Lawyer
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