| SPOTLIGHT |
LexisNexis Local Government, in partnership with Tim Spencer-Lane, sets out the role, powers and functions of the Care Quality Commission (CQC).
What is the CQC?
The CQC is a non-departmental statutory body, sponsored by the Department of Health, responsible for regulating health and social care services in England, as well as protecting the interests of people whose rights are restricted under the Mental Health Act 1983 (MeHa 1983).
The CQC’s legal framework
The CQC was established by the Health and Social Care Act 2008 (HSCA 2008) and came into force in 2009. This dissolved and merged the functions of the Commission for Healthcare Audit and Inspection, the Commission for Social Care Inspection and the Mental Health Act Commission into a single health and social care regulatory body.
The CQC’s role has since been supplemented by wider legislation and regulation. Regulations are made under powers set out in HSCA 2008, s 20.
The CQC’s objectives
The CQC’s main objective 'is to protect and promote the health, safety and welfare of people who use health and social care services' under HSCA 2008, s 3. Its remit includes both the NHS and local authorities, as well as independent providers of health and social care.
The CQC’s is required to perform its functions for the general purpose of encouraging:
The CQC’s functions
The HSCA 2008 sets out the CQC’s functions as follows:
HSCA 2008, s 4 provides, that in performing its functions, the CQC must have regard to, among other matters, the views of the public, the experiences of service users, the need to promote and protect the rights of service users, and the need to ensure that any action taken by the CQC is proportionate to the risks against which it would afford safeguards.
Registration functions
HSCA 2008, Chapter 2 sets out the CQC’s registration functions.
Any service provider of a 'regulated activity' for the purposes of the HSCA 2008 must be registered. The CQC is the responsible body to which registration applications must be made (HSCA 2008, s 14). The CQC will grant or refuse registration according to the service provider’s compliance with requirements in law (HSCA 2008, s 12). These are set out in the Health and Social Care Act (Regulated Activities) Regulation 2014, SI 2014/2936 known as the 'fundamental standards of quality and safety'. In prescribed conditions, the CQC must also approve the registration of managers for service providers.
The CQC may add conditions, cancel or suspend the registration of a service provider or manager at any time. A service provider or manager may apply to the CQC to vary or remove any condition in force in relation to the registration, to cancel the registration or to cancel or vary a suspension of the registration. Such applications are prohibited if the CQC has already served a notice of proposal or a notice of decision to change the conditions of registration in the same way or an appeal has been brought and has not yet been determined (see HSCA 2008, ss 17–18, 19)
Review and investigation functions
HSCA 2008, Chapter 3 sets out the CQC’s review and investigation functions.
Once a service provider is registered by the CQC, the CQC must conduct periodic reviews of the carrying on of regulated activities by regulated service providers, the performance of service providers following each review and publish a report of each assessment (see HSCA 2008, s 46).
HSCA 2008, s 48 also provides for the CQC to conduct a special review or investigation into the provision of NHS care or adult social services or into the exercise of functions by English Health Authorities. This may be conducted without approval from the Secretary of State, with the exception of investigations into the exercise of the functions of the NHS Commissioning Board or a clinical commissioning group in arranging the provisions of NHS care or English local authorities in arranging the provisions of adult social services. For further reading see Practice Note: Care Quality Commission—inspections and reviews.
Functions under the MeHA 1983
The HSCA 2008 transferred all the powers of the Mental Health Commission in England to the CQC.
In addition, the HSCA 2008 transferred the following functions of the Secretary of State within the MeHA 1983 to the CQC:
Inspections
HSCA 2008, s 60, empowers the CQC for the purposes of its regulatory functions to carry out inspections of the manner in which service providers carry on their functions. In order to carry out such inspections, the CQC has powers to enter and inspect any regulated premises (HSCA 2008, s 62) and may require the provision of documents and information, or explanations to be given of relevant matters (HSCA 2008, s 63). Such inspections may be unannounced, but more often they will be pre-arranged, in which case the regulated body is normally given 2 weeks' prior notice in writing and may be informed of certain things that the inspectors will wish to see.
Enforcement powers
The CQC has a range of powers to take action when a service is not meeting the required standards. This includes enforcement against anyone who provides regulated activities for the purpose of the HSCA 2008 without registration and against registered persons who breach conditions of registration or relevant registration requirements as set out in legislation.
Where a person has committed a 'fixed penalty offence' under the HSCA 2008, s 86, the CQC can give a penalty notice in respect of that offence. This is an invitation to pay a penalty instead of being prosecuted for the offence. This allows the person to discharge any liability in relation to the offence by payment of a penalty to the CQC.
Only the CQC or Secretary of State (if carrying out the CQC’s functions) may commence proceedings in relation to any offence under the HSCA 2008, s 90 without written consent of the Attorney General. This must be commenced within 12 months from the date on which evidence sufficient to warrant proceedings came to the prosecutor’s knowledge, with a long stop of three years from the date on which the offence was committed. For further reading see Practice Note: Care Quality Commission—enforcement powers.
Market oversight
The Care Act 2014 (CA 2014) established a national regime for provider failure in the care sector. This followed the collapse of Southern Cross, then the largest independent provider of residential care services. Under this framework the CQC is given responsibility for monitoring the financial position of providers in England who are difficult to replace for example due to their size, concentration or specialism. The objective of the market oversight regime (CA 2014, ss 53–57) is to provide early warning to local authorities, and help ensure that (if a failure occurs) arrangements are in place to secure continuity of care. The Care and Support (Market Oversight Criteria) Regulations 2015, SI 2015/314 set out the entry criteria for the regime. The Care and Support (Market Oversight Information) Regulations 2014, SI 2014/2822 make provision for the CQC to obtain information from persons other than the registered care provider to assist it.
Guidance on dealing with an inspection
Under HSCA 2008, s 23 the CQC must issue guidance about compliance with the requirements of regulations, as well as any other requirements under the HSCA 2008.
The CQC has published a number of handbooks for care providers, tailored to each sector, which includes an overview of how CQC inspects and regulates providers e.g. How we inspect and regulate: a guide for providers—Care Quality Commission
Other bodies, such as NHS England and the British Medical Association, have also produced their own guidance for professionals. For example the British Medical Association has published guidance on its website regarding preparing for a scheduled CQC inspection for GP practices, which sets out key documentation to prepare, how to prepare staff and promote the practice and what the CQC would expect.
Appealing a registration decision by the CQC
Under HSCA 2008, s 26 if the CQC proposes to grant an application for registration subject to any condition which has not been pre-agreed, or if the CQC wishes to refuse, cancel, suspend or vary the conditions of an the application for registration, then they must give notice in writing of such. Where a proposal names an individual and specifies action that the CQC would require the registered person to take in relation to that individual, the CQC must give written notice to that named individual.
A registered person then has 28 days within service of the notice to make written representations to the CQC about any matter they wish to dispute (HSCA 2008, s 27(1))
The CQC shall consider the written representations. If they decide to grant an application for registration, or if they decide to adopt a proposal they were required to give notice of under HSCA 2008, s 26, then they must give notice in writing of such. This notice must explain a registered person’s right of appeal (HSCA 2008, s 28(1), (3))
If a case is particularly urgent, and the CQC has reasonable cause to believe that unless it acts any person will or may be exposed to risk of harm, a notice may be served telling the registered person the CQC has decided to:
Alternatively if there is a serious, immediate risk to a person’s life, health or wellbeing then the CQC can apply to a magistrate to make an order to immediately cancel a registration (HSCA 2008, s 30).
The relevant person can then make representations to the First-Tier Tribunal (Health, Education and Social Care Chamber) to appeal against any:
HSCA 2008, s 32(2) states that representations must be made within 28 days of service of notice.
An appeal of any decision by the First-Tier Tribunal (Care Standards) (Health, Education and Social Care Chamber) can be appealed through the normal processes within the tribunal and courts service—on a point of law to the Upper Tribunal and further appeals to the Court of Appeal, with permission.
Appealing other decisions
The HSCA 2008, provides no right of appeal against an assessment or rating. There is also no provision in the Act or the regulations for a review of assessments or ratings awarded by the CQC.
The Provider Handbooks, provide that prior to publication, service providers can challenge the factual accuracy and completeness of the evidence and findings on which the ratings are based, as well as the proposed ratings themselves. After publication, service providers can seek a review of the ratings.
In R (SSP) v Care Quality Commission, the Administrative Court, on an application for judicial review regarding the CQC’s refusal to vary a draft report on the claimant's service provision and its refusal to review the rating, made a declaration that there was an obligation on the CQC to carry out an independent review of a decision made in response to comments in the factual accuracy comments log, on a request to do so by the inspected entity, if the ground of complaint was that a fact-finding maintained in the draft report was demonstrably wrong or misleading (see R (SSP) v Care Quality Commission [2016] EWHC 2086 (Admin))
Joint working
As part of its role, the CQC interacts with a wide variety of bodies. In addition the HSCA 2008, s 67 states that the CQC:
'Must promote the effective co-ordination of reviews or assessments carried out by public bodies or other persons in relation to the carrying on of regulated activities.'
The CQC have a series of formal agreements—known as memorandums of understanding (MoU)—with other organisations. These set out how the organisations can effectively regulate in partnership, and are located on the CQC’s website. A number of examples of the MoUs are provided below.
MoU between the CQC and General Medical Council
The GMC is the independent regulator for doctors in the UK. The working relationship between the CQC and the General Medical Council (“GMC”) involves cooperation in the following areas:
The MoU agrees that where the CQC or the GMC encounter a concern which falls within the remit of the other, they will at the earliest opportunity convey the concern and relevant information to a named individual with relevant responsibility at the other. This includes the CQC reporting any concerns or relevant information about a particular doctor (which may call into question their fitness to practice) or health care organisation (which may call into question its suitability as a GMC Approved Practice Setting).
MoU between the CQC and Nursing and Midwifery Council
The Nursing and Midwifery Council (NMC) is the independent regulator for nurses and midwives in the UK. The working relationship between the CQC and the NMC involves cooperation in the following areas:
The MoU agrees that where the CQC or NMC encounter a concern which falls within the remit of the other, they will at the earliest opportunity convey the concern and relevant information to a named individual with relevant responsibility at the other. They will also agree to undertake some joint regulatory work.
MoU between the CQC and Health and Care Professions Council
The Health and Care Professions Council is the independent regulator for certain health, psychological and social work professionals. The working relationship between the CQC and the HCPC involves cross-referral of concerns and exchange of information. Therefore where the CQC or the HCPC encounters a concern which it believes falls within the remit of the other, they will at the earliest opportunity convey the concern and relevant information to a named individual with relevant responsibility at the other. In the interests of patient safety or protection, the referring organisation will not wait until its own investigation has concluded (see Memorandum of understanding between the Care Quality Commission and the Health and Care Professions Council).
MoU between the CQC and the Healthcare Inspectorate Wales
HSCA 2008, s 69 states that the CQC and Welsh Ministers 'must co-operate with each other for the efficient and effective discharge of their corresponding functions' and may share information for relevant purposes.
The MoU between the Healthcare Inspectorate Wales and the CQC stresses that both organisations must respect each other’s independent status but will cooperate where necessary and appropriate.
The CQC and Healthcare Inspectorate Wales will also:
MoU between the CQC and NHS Improvement
From 1 April 2016, the following organisations have merged to form NHS Improvement:
NHS Improvement is responsible for overseeing Foundation Trusts and NHS Trusts, as well as independent providers that provide NHS-funded care.
As this organisation is newly created, the CQC has not yet published an MoU with this organisation.
Tim Spencer-Lane is a lawyer at the Law Commission for England and Wales.
This article was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.
