CQC Consultation: will flexible regulation lead to excessive discretion?

In January 2021, the CQC published its consultation on changes for flexible regulation.

The formal consultation follows the announcement on 24 November 2020 by the Department of Health and Social Care that we would shortly be expecting a new CQC strategy  to ‘reduce bureaucracy’ through regulatory change.

The consultation proposes a move away from periodic on-site inspections of care providers and towards a regulatory process of wider data-gathering to proactively assess quality of care and determine risk. This strategy echoes the CQC’s new ‘transitional regulatory approach’ (TRA) that it announced in September 2020 in response to the pandemic. In our article responding to the new approach, we warned that the CQC would not be returning to ‘business as usual’ and it now seems to be the case that the CQC’s response to the pandemic will become a permanent way of regulating.

As with the TRA, the proposals within the consultation focus upon the use of local and national relationships to collate the responses of service users, their families and staff and review ratings more often based upon those responses. There is scope for periodic on-site inspection to be done away with to allow for this more flexible, risk-based approach, with physical assessments being targeted to clear areas of concern.

On the one hand, a more focussed approach to assessing quality of care, essentially one that is based upon the experience of service users and stakeholders on the ground, will surely be welcomed by the majority of regulated organisations and individuals.

However, there will undoubtedly be concerns raised during the consultation process as to how well the CQC can ensure the safety of service users in the face of fewer inspections. Many will also be hesitant about the prospect of the CQC having increased independence in their regulation. In particular, the consultation includes a proposal for provider ratings to be updated without a site visit and based simply upon ‘sources of evidence’ gathered by the CQC. It is difficult to assess whether this can be a positive move when the consultation fails to specify exactly what information they will use and what factors inspectors will take into account when using their ‘professional judgement’. Care providers will likely be concerned that the CQC will have more power to change a rating without stepping foot in the facility.

Going forward, health and care providers should be fully aware of the CQC’s new processes for rating services, including being prepared for ‘targeted and proportionate’ requests for information by the CQC. We will eagerly await the outcome of the consultation and assess what it means for our clients in practice.

Written by Katrina Poole, Trainee Solicitor katrina.poole@blmlaw.com

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