Regulations
people tell the CQC about a service. Issues of credibility make this area rife with difficulty and can cause assessments to be based on unreliable evidence. It is sometimes the case that people
using services do not have the mental capacity to understand the question asked or respond to it appropriately. In one case, a person with dementia told the inspector that some valuables had been taken from her. The home’s inventory did not include
any valuables and it is likely that she was misremembering what she had brought with her. It takes a lot of work to unpick an issue such as this. Disgruntled staff and former staff may also have ulterior motives when providing feedback to CQC, taking retaliatory action in the form of whistleblowing. If the CQC does not have any way to
gauge the credibility of the person blowing the whistle, then the service bears the brunt of the negative inferences drawn. Also, who are the partners and other
organisations from whom the CQC is proposing to collect data? Local authorities and Clinical Commissioning Groups are likely to be sources, but who else is the CQC planning to talk to and what standing, qualifications and methodologies do those organisations have to collect information? How will the CQC know if that evidence is reliable? Providers must be afforded a
meaningful right of reply to evidence gathered from third parties and the CQC must be careful to assess credibility if such information is to be relied upon even more heavily than before. If inspectors have no way to get a feel
for the service more holistically, this is likely to result in an evidential playing field that is tilted even further against providers. In short, the quality of the evidence the CQC relies on really matters but the CQC have provided little detail about who they will gather evidence from, how they will go about it and how they will assess its reliability. Part 2 of the second consultation
is very brief but of critical importance. Here, the CQC proposes to have shorter consultations about future changes to the way it inspects and regulates. It accepts that it is statutorily obliged to consult with providers about proposed changes but say they are currently going above and beyond those statutory requirements. The CQC now proposes to provide
‘fewer large-scale formal consultations, but more ongoing opportunities to contribute as we’ll engage in different ways’. It intends to use alternative ways of gathering insights, such as the use of focus groups and their Citizen Lab online platform. In public law, there is a basic tenet that
consultations must be provide sufficient information to permit those consulted to provide a meaningful response. The CQC seems to want to make consultations more casual, which is concerning as it may result in an even greater imbalance of power between the regulator and those it regulates.
Conclusion If the CQC is given more power to mark their own homework on consultations then we might see future consultations
Mei-Ling Huang
Mei-Ling Huang is a partner in the social care team at law firm Royds Withy King. Mei-Ling is a specialist health and care sector lawyer and a commercial litigator who advises providers on dealing with the Care Quality Commission, safeguarding, contract disputes, fee negotiations, judicial review, and disputes. A partner qualified in the UK and the USA, she has specialised in health and social care litigation for over ten years and has advised a variety of healthcare sector clients including care homes, home care agencies, supported living providers, dentists, GPs and drug and alcohol rehabilitation centres. She can be reached by email at Mei-Ling.
Huang@roydswithyking.com.
April 2021 •
www.thecarehomeenvironment.com 25
that are more convenient for the CQC but less informative for providers. It is important that care providers
respond to these consultations and air any concerns that they may have formally. It is also important that to engage
with your contacts at the CQC on a one- to-one and group basis - for example, through care associations - and make any concerns known on a personal level. Third wave of the pandemic or otherwise, this is your chance to have your say.
References 1 Care Quality Commission, The world of health and social care is changing. So are we,
https://www.cqc.org.uk/get-involved/ consultations/world-health-social-care- changing-so-are-we.
2 Care Quality Commission, Consultation on changes for flexible regulation, https://www.
cqc.org.uk/get-involved/consultations/ consultation-changes-flexible-regulation.
TCHE
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