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Leaving the lawmakers out of the loop

October 29, 2018

By guest blogger NEIL GRANT, Partner, Gordons Partnership

There was a time when regulators just registered and inspected individual services and saw that as their primary function. But now it seems that is not enough – the Care Quality Commission now wants to extend its regulatory reach by widening the definition of a registered provider to incorporate all entities involved in the direction and control of care, not just the entity that directly operates a service.

On this basis, parent companies within a group or management companies could well be required to register with CQC, overturning 50 years of regulation, allowing CQC to inspect and rate the overall leadership of a group and take direct enforcement action against a parent company and the individuals on its board.

This might be the right thing to do in terms of corporate accountability but in my professional view, it requires Parliamentary endorsement. CQC cannot simply wake up one morning and say the rules are completely different; that would be undemocratic and unlawful. If CQC says it needs to widen the scope of registration, it should lobby the Department of Health and Social Care for a change in the law.

This proposal first surfaced in CQC’s Consultation 2 document back in June 2017. In its response in October 2017, CQC said that there was broad agreement to the proposal. In the background CQC has been engaging with a small number of stakeholders, including providers, banks and care consultants to develop the criteria but CQC needs to be open and transparent about what it is planning to do so that the major trade associations, and the wider sector, can consider their position on the issue.

For one thing, there will surely be a cost implication for the sector, even though rather optimistically CQC said in its response to Consultation 2 that it expected extra resources would not be necessary.

In my view, given the finite resources available to the sector, CQC should focus on regulating current registered providers more efficiently and effectively, rather than trying to cast the registration net ever wider.

  • The CT Blog is written in a personal capacity – comments and opinions expressed are not necessarily endorsed or supported by Caring Times.

5 Replies to “Leaving the lawmakers out of the loop”

  1. This issue, as described, seems to turn on the ability of CQC to interpret the relevant statute. Although that could have been challenged, as far as I am aware, it hasn’t. Why, if it’s so fundamental?

    For me, CQC has taken a perfectly logical step. But yes, it must be absolutely transparent in deciding the defining criteria. Rather than kicking around individual opinions, wouldn’t it be better to invite the regulator to respond?

  2. Hi Bob Thank you for your comment. A blog is only ever a summary of the issue given the limit of 300 words. I wrote a detailed piece on this issue with Michael Curtis QC called Cats, Dogs and CQC registration which is available on the Care Management Matters website in their Knowledge Section. It refers to case law. CQC have seen this article but have not responded. I am aware that Care England have also raised the issue with CQC but no response has been forthcoming from them.

  3. Hi Neil. Thanks for the information. My suggestion that CQC should be invited to respond was actually addressed to the blog host – CT!

  4. Fascinating piece in CMM, Neil. One wonders why the provider sector hasn’t challenged the CQC decision at judicial review.

  5. Thanks Bob. I imagine the trade associations are wary of taking on CQC on this particular issue given it may not play well with the man or woman on the Clapham omnibus. One can put forward a persuasive case that it is necessary and I imagine CQC will press on with the proposal whatever I might say. My concern is that it will be applied inconsistently and will add another layer of red tape to an already over-regulated sector without any real benefit to society. Playing to the gallery is the expression that comes to mind.

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