Carl May-Smith looks at some of the most recent developments relating to the CQC and other areas of regulation affecting health & care providers, including in particular a prosecutions update outlining the first CQC criminal penalty for duty of candour failings, recent CQC guidance and upcoming changes, the latest Tribunal decision on CQC registration conditions and what the Court of Appeal decision in Ofsted v Durand means for challenging CQC inspection reports.

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CQC and health
and care
regulatory
update

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Connect with Carl May-Smith
carl.may-smith@brownejacobson.com
+44 (0)115 934 2024
CQC and health
and care
regulatory
update

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Content
• Enforcement update
• Fire safety in care homes
• Recent and upcoming CQC guidance
• Tribunal decision – CQC registration
conditions
• Ofsted v Durand – implications for
challenging CQC reports
• Keep an eye out for…
• Q&A

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Prosecutions
update

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Duty of Candour penalty
• Bradford Teaching Hospitals NHS Foundation Trust
• £1,250 penalty for duty of candour failings
- Alternative to prosecution
• Missed opportunities recorded as a patient safety
incident
• 3 month delay in informing and apologising to family

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Duty of Candour reminder
• Duty of candour applies to all CQC registered
providers
• “Notifiable safety incident” – varies between NHS
Trusts and others
• Notification (including apology) as soon as reasonably
practicable
Breach = criminal
• Written notification afterwards
Breach = regulatory issue

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CQC offences
Display of ratings
• Every website, premises, principal place of
business
• Conspicuous and accessible
Notifications
• Deaths, incidents, changes
Registered Manager condition

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HSE prosecution
• £500,000 fine for fatal H&S failings
• OpCo within major specialist care group
• Incident 3 years before business acquired
• Nearly 5 years ago
• Despite improvement Requires Improvement to Good
since acquisition
• Unusually large fine give OpCo turnover
• Suggests account taken of group finances

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HSE prosecution
• £300,000 fine for failing to protect staff from patient
• NHS Oxleas Foundation Trust
• £257m annual income
• Reduced from £1.5m as public body
• 2016 incident
• Life changing injuries
• Trust has implemented significant improvements
since incident
• Rated Good since 2017

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CMA Action
• CMA launched legal action against Care UK
• Refusal to repay admin fees - £3m
• Care UK: fee was reasonable and reduced care costs
• Shortly follows agreements re: post-death fees
• CMA advice May & Nov 2018
• CMA compliance review Nov 2019

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Care home fire safety
London Fire Brigade review of 177 care homes – most failed
• Fire doors
• Evacuation
• Staffing at night
• Training
• Fire risk assessments
• Assessors
• Roof voids
London Fire Brigade Guidance

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Care home fire safety
• CQC scrutiny inevitable
• Follows on from recent further warning re:
emollients
• Warning expanded to all emollients, even non-
paraffin
• Even after washing
• Risk to smoking residents
• Laundry room risks
• Over 50 deaths attributed

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Recent CQC guidance
CQC briefing – nursing associates
• New role recognised by NMC
• Consider NMC standards for NA alongside
those for RN
• Systematic deployment
• Care homes with nursing still require RN or
other HCP
• Where delegation / supervision was
required, still will be

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Recent CQC guidance
CQC – ‘How we report’
• 1 March 2019
• Discussion 2 days after draft
report
• Clearer format
Learning from safety incidents
• Issue 7: Falls from windows
• Issues 8: Hypothermia

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Upcoming CQC changes
CQC seeking views on:
• Improving ‘Scope of
Registration’ guidance
• Draft factual accuracy process
guidance
• Draft guidance on continuing
regulatory history
• Acquired services to retain
ratings, etc.

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Tribunal decision
• Sussex Healthcare appeal against
registration conditions
• Monthly reporting requirements re:
incidents/accidents and staffing
• SHC: unlawful and unnecessary
• FTT: strong support for conditions
• Terms do not need definitions
• Can replicate Reg 17
• Can apply to Good services

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Ofsted v Durand
• Ofsted appeal against High Court
• Previously upheld JR against
inspection report process
• Very similar to CQC process
• Ofsted process approved by Court of
Appeal
• However … follows Babylon
Healthcare where High Court
suggested CQC has not properly
implemented SSP Health judgment

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Keep an eye out for…
Mental health, capacity and DoL case
law update
• 21 Feb 2019
• Mental Health Act & objective
DoL in the community
• Conditional Discharges,
Community Treatment Orders
and inherent jurisdiction
• Click here to register

19. Join the conversation @health_carelawJoin the conversation @
Connect with Carl May-Smith
carl.may-smith@brownejacobson.com
+44 (0)115 934 2024
CQC and health
and care
regulatory
update