Maddi Gaunt, solicitor at Ridouts, looks at when care home providers should make a statutory notification to the CQC.
All providers will (we hope) be familiar with safeguarding referrals. These need to be made to the relevant safeguarding authority when certain incidents, events, or near misses arise in the provision of care services.
Many events that lead to safeguarding referrals also fall within the definition of what must be notified to the CQC as a ‘statutory notification’ under the Care Quality Commission (Registration) Regulations 2009 (the ‘2009 Regulations’). However, this is not always the case and not every safeguarding referral is necessarily an event that requires a statutory notification to the CQC.
Some of the statutory notifications required under the 2009 Regulations are pretty straightforward, such as reporting the death of a service user under Regulation 16. However, when you drill into the detail, and particularly in the context of the ‘other incidents’ under Regulation 18, it is not always clear whether an event that leads to a safeguarding referral will also require a statutory notification to the CQC or not. It will often be a matter of interpretation of the 2009 Regulations themselves and there are certainly cases that fall into a grey area.
Many providers will want to have a positive relationship with the CQC and want to meet (or exceed) their regulatory requirements, which is no bad thing. However, we are seeing providers tending to move towards over-reporting events to the CQC by way of statutory notifications. This can be risky territory for providers.
The CQC can – and regularly do – use enforcement powers against providers who fail to submit statutory notifications. Consequently, it is no surprise that providers might be inclined to over-report as a matter of course. If nothing else, it might seem simpler to notify than not, and avoids giving the CQC an easy route to enforcement for failure to do so. Also, CQC’s practices seem to encourage over-reporting. We have, for example, dealt with numerous providers who have been criticised by their inspectors for failing to notify all safeguarding events to the CQC when there was in fact no legal requirement to do so.
This tendency for providers to over-report may well be heightened during this COVID-19 response period. It is, for example, entirely understandable that providers will not have the time to assess in detail whether they are required to make a statutory notification each time a safeguarding referral is made, or will have delegated statutory notification responsibilities to staff members who are too junior to justify not reporting all safeguarding referrals. In these circumstances, borderline cases may be notified to the CQC as statutory notifications as a matter of course, as a precautionary approach.
So why is this a risky approach for providers? Is it not better to be safe than sorry? Well, leaving aside whether it is a fair position for the CQC to take (pre or post COVID-19), we know that the CQC keeps services with a high number of statutory notifications under close scrutiny. In other words, a high number of statutory notifications acts as a red flag for a poor service. We have, for example, seen the CQC routinely use a high number of statutory notifications as a basis for enforcement action, as justification for closer scrutiny by way of requests for information or non-routine inspections, or to criticise providers in inspection reports. In other words, making statutory notifications can increase a provider’s risk profile in the CQC’s eyes.
This is not to suggest that providers ought to stop making notifications that are required under the 2009 Regulations but rather they ought to give proper consideration to whether each one needs to be reported. It is easy for busy staff to want to get things ‘off their desk’ but spending time now could ensure that unnecessary problems arise later down the line. Over-reporting is likely to become more and more risky to providers at least in part because of the way the CQC’s strategy and approach is changing, both in response to COVID-19 and more generally. The CQC is adapting its strategy as the pandemic progresses, with the current Emergency Support Framework phase expected to move into a transitional phase in early 2021, and a new strategy expected to be implemented in spring 2021. It is clear they are becoming, and intend to become, more data and intelligence led, particularly in their assessment of risk but also more generally across their approach to all regulatory activity.
The CQC have not been all that transparent about exactly what data they are (or are not) collecting, nor how much weight they are putting to individual pieces of data, nor how they are actually using that data to assess risk in this new ‘intelligence-led’ world. However, it is fair to say that as the CQC continues on its new strategic trajectory, it is likely they will see statutory notifications as an increasingly important source of data and as a clear indicator of risk. We may, therefore, see the CQC giving even more weight to statutory notifications in its assessment of risk (and associated decision making), and more commonly using these as its justification for ‘crossing the threshold’ or increasing scrutiny of a service, or pursuing enforcement action.
Ultimately, there is a balance to be struck and providers should proceed with caution when making statutory notifications. On the one hand, providers should notify the CQC of events that fall within the relevant regulations – indeed it is a legal requirement to do so – and providers should not be discouraged from making notifications where they are required to. Many safeguarding referrals will fall squarely within the requirements to notify the CQC and providers should continue make statutory notifications to the CQC where these are required to ensure they meet their regulatory requirements.
On the other hand, providers are reminded they should not assume that every safeguarding referral will also require a statutory notification to the CQC. Each safeguarding referral should be considered on its own facts, and unless the event that gave rise to it meets the definition in the 2009 Regulations of what does need to be notified to the CQC, it generally should not be. A blanket policy of sending a statutory notification to the CQC after any safeguarding referral is potentially risky.
Admittedly, interpreting the exact wording of the 2009 Regulations is not always easy and there are a number of safeguarding referrals that will be borderline on the requirement to notify the CQC. Where a provider takes the decision not to make a statutory notification to the CQC following a safeguarding referral, it is worth recording that decision – and the justification for it – in case the CQC do disagree and they have to defend the position after the fact.
Irrespective of what the CQC think, or how helpful providers think they are being by erring on the side of caution, providers should not feel obliged or pressured into making a statutory notification to the CQC where there is no legal requirement to do so. Frequent or consistent over-reporting is likely to cause providers more harm than good in the long run.
If providers are not sure of their reporting obligations in respect of a specific incident or event or more generally, or require any advice on CQC matters, please contact Ridouts on 0207 317 0340.