Registered providers and managers of CQC registered services should be fully aware of, and familiar with, the CQC notification requirements.
The circumstances in which notifications are required are clearly set out in the Care Quality Commission (Registration) Regulations 2009 (the ‘Registration Regulations’) and associated guidance. However, a recent CQC inspection report has prompted reflection on CQC’s notification requirements, in particular the requirement under regulation 18 of the Registration Regulations, which covers ‘notification of other incidents’.
In the example, during the inspection, CQC discovered that the local authority had previously suspended new admissions to the service due to concerns about missed calls. The suspension had been lifted over 5 months before the inspection. CQC had not been made aware of the suspension at the time, either by the provider or the local authority. As a result of the observation, CQC concluded that the provider was in breach of the notification requirements, in particular Regulation 18(2)(g) which relates to
“any event which prevents, or appears to the service provider to be likely to threaten to prevent, the service provider’s ability to continue to carry on the regulated activity safely, or in accordance with the registration requirements…”.
The legislation provides direct examples of circumstances that could be considered to fall under this requirement in certain circumstances, these include staffing shortages, an interruption to the supply of electricity, gas, water or sewerage, physical damage to the premises and the failure of safety devices such as fire alarms. There is no explicit mention of a requirement to notify CQC of an embargo either in the legislation or any CQC guidance.
When the provider challenged CQC’s conclusion, CQC responded stating that a local authority embargo, particularly where it arises from safety concerns such as missed visits, meets the reporting requirement. CQC additionally noted that it expects providers to notify it when a commissioning body suspends placements due to safety concerns (in this case missed visits), as this has a direct impact on the provider’s ability to deliver safe care. CQC also noted that a lengthy suspension was a significant event that should have been notified due to its substantial impact on staffing levels and service delivery.
While there is no explicit requirement to formally notify CQC in such circumstances, the inspector has taken a firm stance in this instance. It is likely that if there were ongoing safeguarding concerns or leadership issues that placed people at risk these would be notifiable, but the existence of an embargo in and of itself should not require formal notification. Indeed, in many circumstances it is the local authority that informs CQC of an embargo without any formal notification being sent on the part of the provider. In other cases, local authorities enforce embargoes based on negative CQC ratings (this is regularly built into contractual terms). In such circumstances, would the provider still be expected to notify CQC of the matter? If the service subsequently had issues with its financial viability, then maybe the answer is yes. However, many services are able to weather a temporary embargo while continuing to provide safe care to service users throughout. Therefore, while the circumstances leading to an embargo may be notifiable depending on the facts, the decision of a commissioner to impose an embargo should not be seen to be automatically notifiable.
A failure to comply with the notification requirements under the Registration Regulations is an offence. By virtue of regulation 25, CQC has the power to prosecute providers and/or registered managers for any failure to comply with relevant regulations. Such fines can cost up to £2,500 per offence. CQC may also issue fixed penalty notices at £1250 per offence for a provider and £625 per offence for a registered manager. It’s therefore important for providers and managers to ensure they have clear systems in place ensuring notifications are submitted to CQC as and when required.
It is questionable whether such an alleged breach would stand up in court if CQC decided to prosecute a provider on this basis. However, give CQC’s current stance, providers should err on the side of caution and consider notifying CQC directly of any such circumstances.
About the Author
Senior Associate Solicitor
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