Inadequate ratings: the error within the automatic imposition of the Special Measures regime
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In its updated version of the Provider Handbook for Residential adult social care services, April 2016, the Care Quality Commission has clarified the position on re-inspection timeframes. The previous wording having been somewhat ambiguous, the new handbook confirms that services rated overall ‘inadequate’ (and therefore automatically subject to the Special Measures regime) “will normally have a comprehensive inspection within six months of the last comprehensive inspection report being published”. In the former wording, it was arguable that a service with an ‘inadequate’ rating would be re-inspected within six months of the initial visit as opposed to six months from publication of the report.
The Provider Handbook sets out the rationale for Special Measures:
• Ensuring that providers found to be providing inadequate care significantly improve.
• Providing a framework within which CQC use their enforcement powers in response to inadequate care and working with, or signposting to, other organisations in the system to ensure improvements are made.
• Providing a clear timeframe within which providers must improve their quality of care or CQC will seek to cancel their registration.
The justification is that the Special Measures regime is imposed automatically where services require immediate intervention. The CQC Guide to Special Measures: Adult Social Care document emphasises the importance of a speedy response: “The special measures framework is designed to ensure a timely and co-ordinated response where we judge the standard of care to be inadequate”.
However, as providers will know, it can take inspectors months to produce a draft report after the comprehensive inspection. In the meantime, most providers receive no warning notices and are subject to no alternative enforcement actions. The absence of any timely CQC enforcement action suggests that (though they witnessed practices that they consider below standard) the inspectors did not fear for the immediate safety of residents; for example, where inspectors became aware during the visit of improvements being proactively implemented and satisfactory action plans in place.
In this scenario, a rating of ‘inadequate’ without enforcement action would accurately reflect the service on the date of inspection and also reflect that immediate punitive enforcement action was not necessary to safeguard the client group.
It is at this point in the process that human discretion collides with the automatism of the CQC system. Despite the inspectors’ conclusion that the provider is satisfactorily addressing concerns without requiring additional input, the ‘inadequate’ rating would nevertheless automatically trigger the service being placed in Special Measures irrespective of the inspectors’ views on ongoing risk.
Contrary to the Special Measures’ emphasis on the need for speed, the delay between inspection and published report could mean that the service is not re-inspected for many months after initial inspection. This timeframe would be extended further should the provider make use of the Factual Accuracy Comments process to challenge any aspect of the report pre-publication. Post-publication and prior to re-inspection, the service would remain within Special Measures and subject to an ‘inadequate’ rating; with predictable reputational and financial damage.
A member of the public researching what the rating means would note the CQC Guide to Special Measures: Adult Social Care: that “it is very likely we will also be taking enforcement action against providers that we put in special measures. This could include Warning Notices and imposing conditions of registration”. This individual might be surprised to learn instead that the provider was subject to no warning notices and may not be re-inspected for many months. Without this context, a potential resident or family member reading the report is provided with a wholly misleading picture of the service and may miss out on the perfect setting for them or their loved one as a result.
In his Executive Summary to the Report of the Mid Staffordshire NHS Foundation Trust Public Enquiry, Robert Francis QC stated that the “provision of accurate information on which the public and others can rely to make decisions” (paragraph 1.73) is the basic task of CQC, together with protecting users of services from substandard care. CQC has a duty to ensure that reports provide accurate information on which the public can rely to make decisions, yet at present (despite no enforcement action being taken against a provider and months between inspection and report), Special Measures implies that CQC were so concerned by what inspectors found that they instigated an urgent response to immediately safeguard service users.
This provides an inaccurate representation to the very members of the public to which CQC owes its central duty of accuracy. It would only take modest steps to ensure that the Special Measures regime operated as intended. Where inspectors visit and find a service to be ‘inadequate’, they should prioritise the drafting of that report; certainly to within the 50 working days that CQC guidance provides. The impact of an ‘inadequate’ rating and the imposition of Special Measures (on the provider’s business and on potential residents) should be more keenly observed. Where inspectors do not consider there to be a need for immediate enforcement action, the label of Special Measures becomes meaningless and CQC should introduce a discretion on when to impose it.
Additionally, CQC should have the flexibility to consider and act upon the feedback of the local bodies that often have input into the service at the same time. Where the CCG, local safeguarding or County Council quality monitoring teams recognise improvements to a service, CQC should be able to respond; either by placing reliance on this independent information or using it to trigger an early re-inspection. After all, those local bodies viewing the service on a daily, weekly or monthly basis are arguably better placed than CQC to assess, monitor and support on the ground. Where the local assessments are positive, why is there little or no use of the facility for that to be fed back to CQC; if only to trigger an early re-inspection? One suspects that the answer may be a lack of resources, preventing CQC from being able to prioritise inspections at short notice.
Ultimately, CQC should recognise that the Special Measures regime is guidance, not statutory legislation. It can and should be subject to reasonable discretion. Without discretion, no rating or report can be relied upon as an accurate reflection of any service and the public confidence in the system suffers as a result.