The CQC finds its teeth

The Care Quality Commission is changing, writes Philippa Doyle, partner at Hempsons, and providers need to be acutely aware of their responsibilities

January not only saw the appointment of Kate Terroni as the new head of adult social care at the CQC, replacing Andrea Sutcliffe, but also the publication of details of CQC’s first prosecution under the Duty of Candour rules that came into force on 1 April 2015.

Bradford Teaching Hospital’s NHS Foundation Trust was subject to a £1,250 fine from CQC due to a delay in compliance with the Duty of Candour notification timeframes. CQC issued a fixed penalty notice to the trust (which generally amounts to 50% of the fine that could be ordered by the court).

In a press statement CQC said: “Under the Duty of Candour, all providers are required to be open with patients or their families when something goes wrong that appears to have caused significant harm.

“The action that we have taken against Bradford Teaching Hospitals does not relate to the care provided to this baby, but to the fact that the trust was slow to inform the family that there had been delays and missed opportunities in the treatment of their child. Patients or their families are entitled to the truth and to an apology as soon as practical after the incident – which didn’t happen in this case.”

This demonstrates a change in approach by CQC, which has never previously taken action against any provider under duty of candour. It comes at a time when there has been a number of prosecutions that have never before seen, including:

• threatened prosecution for delay in securing a replacement registered manager at a care home, and for a home care service;
• threatened prosecution for the delivery of unsafe care to a hospital trust and an actual prosecution of a care home for delivery of unsafe care;
• threatened prosecution for failure to notify CQC of safeguarding concerns.

These are all matters that up to now might have only led CQC to downgrade a provider’s report, but the last six months have seen the CQC start to use the teeth it has had for many years.

Providers in all sectors need to be aware of their duties and responsibilities pursuant to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. They also need to be acutely aware that if they are found in breach, they are now apparently very likely to face prosecution or be presented with a Fixed Penalty Notice.

The CQC process is not to notify a provider of its intentions, so providers are urged to use the 28 days available to them to seek to challenge the approach of the CQC. We are seeing many instances of an inconsistent approach being taken by the CQC in different areas of the country – those providers who operate across different counties may find one service challenged, and another not, over the same alleged misdemeanour.

This change in approach by the CQC may cause you confusion but do remember that if you are issued with an FPN, you do not have to automatically accept it, you can challenge it and use it as an opportunity to engage with CQC about its approach and expectations.