CQC and health & care regulatory update, February 2019

Carl May-Smith looks at some of the most recent developments relating to the CQC and other areas of regulation affecting health & care providers, including in particular a prosecutions update outlining the first CQC criminal penalty for duty of candour failings, recent CQC guidance and upcoming changes, the latest Tribunal decision on CQC registration conditions and what the Court of Appeal decision in Ofsted v Durand means for challenging CQC inspection reports.

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CQC and health
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regulatory
update

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CQC and health
and care
regulatory
update

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Content
•Enforcement update
•Fire safety in care homes
•Recent and upcoming CQC guidance
•Tribunal decision–CQC registration
conditions
•Ofsted v Durand–implications for
challenging CQC reports
•Keep an eye out for…
•Q&A

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Prosecutions
update

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Duty ofCandourpenalty
•Bradford Teaching HospitalsNHSFoundation Trust
•£1,250penalty for duty ofcandourfailings
-Alternativeto prosecution
•Missed opportunities recorded as a patient safety
incident
•3 month delay in informing andapologisingto family

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Duty ofCandourreminder
•Duty ofcandourapplies toallCQC registered
providers
•“Notifiablesafety incident”–varies between NHS
Trusts and others
•Notification (including apology) as soon as reasonably
practicable
Breach= criminal
•Written notification afterwards
Breach= regulatory issue

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CQC offences
Display of ratings
•Every website, premises, principal place of
business
•Conspicuous and accessible
Notifications
•Deaths, incidents, changes
Registered Manager condition

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HSEprosecution
•£500,000 fine for fatalH&Sfailings
•OpCowithin major specialist care group
•Incident 3 yearsbeforebusiness acquired
•Nearly 5 years ago
•Despite improvement Requires Improvement to Good
since acquisition
•Unusually large fine giveOpCoturnover
•Suggests account taken of group finances

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HSEprosecution
•£300,000 fine for failing to protect staff from patient
•NHSOxleasFoundation Trust
•£257mannual income
•Reduced from £1.5mas public body
•2016 incident
•Life changing injuries
•Trust has implemented significant improvements
since incident
•Rated Good since2017

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CMA Action
•CMA launched legal action against Care UK
•Refusal to repay admin fees-£3m
•Care UK: fee was reasonable and reduced care costs
•Shortly follows agreements re: post-death fees
•CMA advice May & Nov 2018
•CMA compliance review Nov 2019

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Care home fire safety
London Fire Brigade review of 177 care homes–most failed
•Fire doors
•Evacuation
•Staffingatnight
•Training
•Fire riskassessments
•Assessors
•Roofvoids
London Fire Brigade Guidance

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Care home fire safety
•CQC scrutiny inevitable
•Follows on from recent further warning re:
emollients
•Warning expanded toallemollients, even non-
paraffin
•Even after washing
•Risk to smoking residents
•Laundry room risks
•Over 50 deaths attributed

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Recent CQC guidance
CQC briefing–nursing associates
•New rolerecognisedbyNMC
•ConsiderNMCstandards for NA alongside
those for RN
•Systematic deployment
•Care homes with nursing still require RN or
otherHCP
•Where delegation / supervision was
required, still will be

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Recent CQC guidance
CQC–‘How we report’
•1 March 2019
•Discussion 2 days after draft
report
•Clearer format
Learningfrom safety incidents
•Issue 7: Falls from windows
•Issues 8: Hypothermia

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Upcoming CQC changes
CQC seeking viewson:
•Improving‘Scope of
Registration’ guidance
•Draft factual accuracy process
guidance
•Draft guidance on continuing
regulatory history
•Acquired services to retain
ratings, etc.

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Tribunal decision
•Sussex Healthcare appeal against
registration conditions
•Monthly reporting requirements re:
incidents/accidents and staffing
•SHC: unlawfuland unnecessary
•FTT: strong support for conditions
•Terms do not need definitions
•Can replicateReg17
•Can apply to Good services

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Ofsted v Durand
•Ofsted appeal against High Court
•Previously upheld JR against
inspection report process
•Very similar to CQC process
•Ofsted process approved by Court of
Appeal
•However … follows Babylon
Healthcare where High Court
suggested CQC has not properly
implementedSSPHealth judgment

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Keep an eye out for…
Mental health, capacity andDoLcase
law update
•21 Feb 2019
•Mental Health Act & objective
DoLin the community
•Conditional Discharges,
Community Treatment Orders
and inherent jurisdiction
•Click here to register

19. Join the conversation @health_carelawJoin the conversation @
Connect with Carl May-Smith
[email protected]
[phone]
CQC and health
and care
regulatory
update