No testing for CQC inspectors: does it risk a breach of the requirement to provide safe care?

The Department of Health and Social Care has made the decision to deny testing to Care Quality Commission (CQC) inspectors, placing service providers at risk of breaching their requirement to provide a safe care environment.

On 16 September 2020, the CQC announced its transitional regulatory approach, confirming the monitoring and inspection processes that would be put in place, initially for providers of adult social care and dental services. This would involve the resumption of an inspection process for those services found on monitoring to present more than a low level of risk or risks to service users. Some 500 care homes are to be inspected in the next six weeks.

July saw the Government’s announcement of a new social care testing strategy which would involve the regular testing of care home staff and resident testing so it comes as a surprise that the Independent today reports that the same has not applied to those undertaking inspections of such facilities.

It is said by the CQC that since March 2020, 225 of its staff have self-isolated, 103 of which were inspectors; six of whom tested positive. Whilst inspections were suspended during the majority of the period to which these figures relate, should it not be the case that on the resumption of an inspection process, testing is vital for those undertaking inspections so as to provide reassurance to providers,  service users and their relatives?

The Independent has today reported that the Department of Health and Social Care’s position is that contact between vulnerable residents is not sufficiently close as to warrant testing but it seems this ignores the point that inspectors do work closely with staff members and could clearly pass on the virus to those individuals. Personal protective equipment is required to be worn but in the absence of testing even those who are asymptomatic, this does not eradicate the risk of spreading the virus around the service.

With infection rates and prevention strategies coming under the spotlight for care homes during the last peak of the pandemic the knowledge that testing is being denied to inspectors is alarming.

The planned development of Designated Discharge units for service users being discharged from hospital, such units being regulated by the CQC, the infection risks associated with not testing inspectors seems only to increase.

Questions surely need to be asked as to why CQC inspectors are not considered ‘essential workers’ , the list of whom includes individuals working for utility companies, medical supply distributors and those involved in food production who may arguably have less physical contact with service users than a CQC inspector.

Denying access to an inspector is not permitted but should care homes be demonstrating their commitment to infection control by doing so? Such an approach is said to be supported by the CQC’s Chief Inspector of Social Care which service providers may think gives authority to do so. Whilst we clearly cannot advise that inspectors should be denied access,  clearly documented risk assessments enunciating the risk to staff and residents of permitting access to those who have not been tested would appear a sensible approach, particularly as numbers continue to increase.

Clare Chapman, Partner, BLM

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