Confused about warning notices? – you’re not alone
Warning notices are being issued by the Care Quality Commission at an alarming and unprecedented rate, says Ridouts solicitor JONNY LANDAU
In 2011/12 CQC issued 638 warning notices (notices to providers that they are breaching regulatory requirements), the vast majority in the second half of the year.
In most cases, CQC goes on to publish press releases about the warning notices it issues. This poses a particular risk in the silly season of the summer recess when the press are short of stories and are thus likely to run more social care stories during that period. The reputational risk to providers is obvious. CQC also has discretion to share warning notices with local authorities and are doing so without informing providers. The threats posed by warning notices look set to continue as warning notices are one of the first steps in CQC ‘enforcement escalator’, its tool for choosing appropriate regulatory sanctions. We expect them to be issued routinely for all but the most minor breaches.
When CQC issues a warning notice, it has discretion to publish information about it but if first must allow the provider a chance to make representations about the notice.
CQC recently issued internal Guidance about how inspectors should exercise the discretion. In the Guidance, CQC emphasises that any factual accuracies must be dealt with through commenting on the draft inspection report. A source from CQC said that if it emerges during the comments procedure that factual errors underpinned the warning notice, the warning notice would not be published.
From a legal perspective, it doesn’t matter which part of CQC considers factual matters, so long as they are properly considered before publication. CQC’s approach might be awkward but it is not necessarily unlawful. The risk is that CQC’s internal miscommunication might mean that the comments to draft inspections process do not feed into the representations about publication process. That risk is accentuated by the fact that CQC’s Guidance on this point is as clear as the murkiest of muds. We have been having a dispute at Ridouts about whether CQC’s Guidance is a pig’s breakfast or a dog’s dinner but we are all in agreement that it is confusing and may well be misapplied by CQC.
To mitigate that risk, providers who dispute the factual basis for a warning notice should draft comments to the draft inspection report detailing the factual errors. When they (separately) submit representations on the warning notice, they should point out that they are writing separately about the factual inaccuracies and state that the warning notices should not be published until those challenges have been resolved.
The Guidance also tells inspectors to ignore any representations about actions the provider has taken to address issues in the warning notice. That is wholly irrational. Clearly, if a provider promptly addressed areas of non-compliance, that ought to be one consideration that favours non-publication. After all, readers of the press releases may well assume that information published by CQC is current. Moreover, it is irrational for CQC to treat equally those providers who take immediate remedial action as those who do not. CQC has a duty to take into account all relevant matters before publication and in our view, CQC’s Guidance here is plainly unlawful.
The CQC Guidance also suggests that inspectors should not take into account any representations that are about matters picked up in the management review meeting such as the quality of the evidence.
CQC is wrong here too. Whether or not the content was ‘picked up’ in the management review meeting, providers have a statutory right to make representations about the matters dealt with in the warning notice. Providers will not have been present at the management review meeting so plainly would not have had an opportunity to make representations on the matters discussed. It is worrying that important decisions are being made behind closed doors without providers being able to be heard. Providers who receive warning notices should ask for minutes of the management reviews so that, at the very least, they know what has been said.
The Guidance states that CQC should review representations which are founded on the argument that publication would result in making sensitive information public and that would have a detrimental effect to the service user and/or the wider public. Such cases might be rare but could include, for example, publishing information about services whose residents might be victimised by the local population.
CQC will generally not take into account any adverse impact on the provider of publishing information about the warning notice, but will do so in exceptional circumstances. That seems to be common sense. It seems nonsensical, however, that CQC would consider financial considerations in exceptional cases, but takes a blanket approach against considering remedial action taken by a provider.
CQC is also, rightly, clear that the topics in the Guidance are non-exhaustive. We endorse that. If there are any other reasons you think relevant to the issue of publication, by all means include them in your representations.
A further disappointing detail in the Guidance is CQC’s assertion that there is no power to withdraw warning notices following representations. There is a provision in the Health and Social Care Act 2008 which authorises CQC to do anything which appears to it to be necessary or expedient for the purposes of, or in connection with, the exercise of its functions. We think that would include withdrawing warning notices. Certainly, we have seen several cases where CQC has withdrawn notices of proposal in relation to registration about which there is also no specific statutory provision.
Finally, if it looks as though CQC will publish information, providers should have a pro-active public relations strategy. This might include, for example, taking the initiative and writing to commissioners and other stakeholders and having a holding statement ready in case of media approaches.
The Guidance this article is based on is CQC internal Guidance that we obtained under the Freedom of Information Act. We are happy to share it with any providers who need it.
If this is all a little confusing, you are not alone. From what CQC is writing about this area, they’re at least as confused as the rest of us. If in doubt, please call us for an informal discussion.
Jonny Landau, partner, Ridouts LLP
Tel: 020 7317 0346