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Are CQC routine inspections likely to recommence? And in what form?

From Ridouts Professional Services Plc

www.ridout-law.com

May 29, 2020

The Care Quality Commission suspended routine inspections in March 2020. According to its letter to social care providers on 16 March 2020 announcing the suspension, this was to support providers and keep people safe in response to the coronavirus pandemic. It therefore seems that inspections were suspended both for safety reasons, to keep down the risk of transmission to (and from) its inspectors and within care homes, and to take the pressure off services during an unprecedented public health crisis.

The CQC has yet to announce when it will start routine inspections again. In the 16 March 2020 letter, it stated that inspections would “not be conducted in their present form during the period of the pandemic”. It is not entirely clear what they expected to measure the “period of the pandemic” by. Did they mean, for example, that inspections as before will not resume until the WHO officially declares the pandemic over? We doubt it. More recently, in a webinar on their new Emergency Support Framework, the CQC confirmed that they would resume inspections when it was “safe” to do so which is probably a more realistic yardstick.

Whilst they made it clear that they would continue some ad hoc inspection activity, particularly where they had “concerns” in respect of safety or safeguarding matters, the CQC has been accused of breaking the law by suspending routine inspections on the basis that it breaches human rights and equalities laws. Leaving aside whether this accusation has any merit, in practice providers were probably quite pleased to have some respite from routine inspection activity. Our clients often tell us that whilst they understand that inspections are necessary, they can be a particularly stressful time for a service and its staff and this would only have been exacerbated by having to deal with Covid-19 as well.

Now England is starting to get back to some sense of normality, with other non-essential retailers able to reopen in a few weeks’ time, will CQC’s justification for suspending routine inspections remain valid? We know transmission rates are falling and if half the country is able to get back to work safely, would it not make sense for CQC’s inspectors to do so as well? Providers have done a brilliant job on the whole in managing Covid-19 and keeping one inspector – or a small team of people “socially distanced” in a service would not now be beyond the capabilities of most prudent providers. Theoretically, as long as suitable safeguards were put in place it would probably be safe to start routine inspections again relatively soon.

On the other hand, the significant pressures providers are facing persist, and will not suddenly go away anytime soon. Whilst things are improving on the PPE and testing front and providers are showing impressive skill and resolve in preventing, or handling outbreaks of Covid-19, it is not the case that the pressure has suddenly abated. Providers are now having to deal with, or start planning for, the aftermath of the coronavirus. Financial difficulties, exhausted staff, backlogs of paperwork, ever changing public health guidance and coronavirus “contingency” arrangements will be around for a good while yet. We expect that most providers would rather the CQC kept routine inspections suspended for as long as possible, at least until things calm down and they have had the opportunity to take stock.

The CQC has a legal duty to periodically review and report on services; it “must” do this to comply with the Health and Social Care Act 2008. This duty has not fallen away. The CQC is not, however, duty bound under this legislation to inspect; it is a discretionary power. They “may” inspect to meet other obligations and requirements so do not, in theory, have to inspect periodically where it is not required to meet a legal obligation. However, we think it unlikely that routine inspections will not resume.

As part of its Emergency Support Framework, the CQC is undertaking hour long calls with providers, following which it will determine whether a service is “managing” or “needs support”. In cases where the CQC considers there are serious concerns about how a service is managing, this may prompt an inspection. The CQC is also requiring providers to provide data on a regular basis, and is engaging with providers on various matters to assist with the response to the pandemic. The CQC could therefore argue that it is still meeting its legal requirement to “review” services with their ESF calls, ad hoc inspections and other activity and could in theory, do away with routine investigations permanently. However, this approach would fall foul of the CQC’s various procedures and policies which, at present, remain in force. If it was to fundamentally change its approach to inspections, it would need to think this through carefully, ensure that it could meet its legal duties in other ways, and properly consult with those in the sector.

Despite the ongoing pressures on providers, we expect the CQC will be gearing up to re-start routine inspections in the not-too-distant future. Whether they will look the same as pre-coronavirus inspections or not remains to be seen. Inspectors will presumably need to visit a service to “get a feel” for it and carry out some parts of the traditional inspection – such as watching staff in action, or speaking with service users – but it is not entirely unforeseeable that at least part of the inspection process could be done virtually. For example, staff interviews, care records reviews and various other parts of an inspection could, in theory, be done remotely. Providers and businesses all over the country have proved that a lot of work that was traditionally thought to require face-to-face contact can in fact be conducted very efficiently by virtual or remote methods and the CQC may well look to adopt some new methods in its inspection regime in the interests of safety, and possibly cost saving.

It will be interesting to see if we ever see a return to the pre-Covid-19 “present form” of routine inspections at all.

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