CQC’s decision to close the Dell Home overturned by Tribunal
A recent decision by The Tribunal saved The Dell care home from closure, which it had been required to do under a new enforcement policy and enforcement “tree” laid down by the Care Quality Commission. As Philip Engelman, a noted barrister in this area of law, writes, this was an eminently sensible decision by the Tribunal.
This case concerns The Dell Care Home, which was threatened with closure by the Care Quality Commission (the regulatory body) following a history of failures in care. The CQC called them “long-term systemic failures” and, under a recently introduced enforcement policy, said the home should be closed permanently. The home responded that closure was a disproportionate response and that the home could meet the risks of which the CQC spoke by meeting certain conditions.
The background to the case is as follows. The Dell was granted registration for 40 “Service Users” (ie residents) in February 2011. Between February 2013 and December 2014, the Home was inspected on 10 occasions. The CQC found various breaches of the regulations which led to a warning letter about the care needs of service users who were suffering from weight loss. There had been five managers since February 2014, which had been a contributory factor in the failure of the service to improve.
In November 2014, matters came to a head when a whistle-blower complaint was made. There were concerns about the lack of sufficient liquid and nutrition. In particular, it was observed that there was a lack of effective and robust systems of management in place to identify shortfalls in staff practice and service provision. CQC’s view was that there were deep-seated systemic problems within the home and closure was necessary to protect the interests of service users.
The services provided by the home were regulated under the Health and Social Care Act 2008, and the service provider must comply with the Regulated Activities Regulations 2010 so as to ensure the care and welfare of patients, cleanliness and infection control, the management of medicines, safety of premises and equipment, complaints handling patient records and the training and recruitment of staff.
The 2008 Act empowered the CQC to impose conditions (s.12); to cancel the registration (s.17) in which case it must give notice of proposal of its intention so to do (s.26) in respect of which the service provider has a right of appeal (s.32). The burden is on the CQC to prove the facts on which they rely in establishing that the registration should be cancelled. The tribunal makes the decision afresh and is entitled to consider post-decision evidence.
In the case of The Dell, the tribunal took into account the extensive history of the problems identified by the CQC in the home but were impressed by the efforts made most recently by Wellbeing Care Ltd and the director charged with the responsibility of the home, together with its expertise. Although the home was running a small overdraft, it was expected that the financial situation would improve as the number of service users increased.
The tribunal considered the CQC’s enforcement policy which came into force in February 2015 and the Enforcement Decision Tree (about which more, below), but held that the home should have the opportunity to “turn the home around” recognising that this process might take between 12 and 15 months.
The home’s appeal was allowed. The decision is significant for a number of reasons.
- This was the first occasion on which the Enforcement and Decision Tree Tool had been used, which, though it pointed to closure, was not followed by the tribunal.
- The tribunal accepted the evidence of the home, whilst there was improvement in some areas, there was not improvement in all of them, but nonetheless, it was proper to give the home some time to turn the home around, which in that case was 12-15 months.
- Although staffing levels had been criticised, the evidence of the home’s expert as to what was appropriate in terms of staffing levels was to be preferred to a “computer tool”.
- The impact of closure on the service users was of great importance and it was disproportionate to require closure if the situation could be dealt with by the imposition of further conditions.
- It was important that using the methodology of the CQC as contained in its Enforcement Policy and Decision Tree that the risk would have been at a high level but a lower medium level but for the extensive history.
Enforcement policy and Decision Making tree
Because this was the first time that the CQC’s decision making tool had been considered by the tribunal, it is useful to look at that in more detail.
The Enforcement Policy took effect from 1 April 2015. It is to operate together with the Enforcement Decision Tree. The purpose of the policy is to enable the CQC to take a “structured decision process” to decide the approach it should take in using its powers.
A distinction is drawn between those cases where the quality or safety of a service is below the required standards where the risk of harm is not immediate, and those cases where the service has fallen to unacceptable levels, especially where there is a risk of harm.
The policy says that five principles guide its decision making:
- Protecting those who use the service
- Enforcement is to be integrated into its regulatory model by reference to a table which cross-refers rating to the Regulations
- Enforcement will only be undertaken where it is proportionate – which translates into looking for improvement rather than taking immediate action
- Consistency
- Transparency
The appropriate enforcement power is stated by reference to a four-stage decision making process. The first stage is the initial assessment, which must be carried out through a structured management review meeting (“MRM”). Thereafter, there is the checking of the evidence held by the Commission and then an analysis of the seriousness of the concerns and evidence of multiple or persistent breaches. That is divided in two stages – stage 3A looks at the seriousness of the concerns and stage 3B looks at other incidents which might be relevant. There is then a final review by the MRM. It is at stage 3 that the Decision Tree is employed.
The policy makes plain that the first port of call are Requirement Notices which are to deal with cases when there is no immediate risk of harm. These are designed to elicit from providers how they will remedy any shortfall in their service identified.
The next level up is the service of a warning notice where a condition of registration is not being met. Where a continuing breach of regulations is identified a time scale is given as to when improvements are to be made. Note also that warning notice can be given to NHS Trusts or Foundation Trusts.
The policy then sets out the various steps that can be taken under the Act, including the imposition of conditions. Note that conditions can be imposed if their imposition is likely to result in the provider addressing matters of concern within an acceptable period of time.
Urgent powers of cancellation will only be used where there is a serious risk to life, health and wellbeing.
The special measure regime should be used where there are ratings of inadequate care. Their purpose is to provide a framework within which CQC’s powers can be exercised as well as a structure for working with other oversight bodies in order to achieve improvements to standards and regulatory compliance. The policy goes on to deal with where criminal process will be used instead of civil process which includes the power to issue penalty notices.
The Enforcement Decision Tree
This is a fairly mechanistic approach to decision making although the guide says the opposite. This requires the CQC to assess the seriousness of the concerns and look to see whether “a service is carried on in an inappropriate way without effective management of risk”.
Next considered is the impact of the concerns if there were to be a reoccurrence. The table that is provided in the guide identifies three levels of impact: major, moderate and minor. These in turn translate into the level of risk to a service user’s life, health or wellbeing.
There follows an analysis of the likelihood that facts giving rise to concerns will happen again, which is accompanied by a chart which seeks to define risk in terms of probability, possibility and remoteness.
This is followed by yet another table which assesses impact of the concern against the likelihood of a repetition.
There is the initial recommendation which seeks to analyse seriousness in terms of extreme, high or medium. There is yet a further stage which requires identification of multiple or persistent breaches which seeks to divide this into various categories. There follows a question about the provider’s track record and whether it shows repeated breaches and whether or not there is adequate leadership and governance.
The severity of the enforcement action will depend on factors going to the provider’s assessment of risk whether there are multiple breaches or whether there is a history of breaches and finally whether there is inadequate leadership or governance.
The final stage is an assessment by reference to the CQC Board’s sector enforcement policies. This is undertaken by the MRM.
Thus, it can be seen that before any particular method of enforcement is decided upon, a complex analysis must be undertaken by the CQC and it will be expected to produce the minutes of its decision making process at every stage.
The advantage of this is that there is a universal framework for decision making. This is of benefit to care providers who will no doubt wish to challenge the decision making process, as a process, as one might in judicial review proceedings.
The disadvantage is that even though the decision tree says there should be no mechanistic approach on the part of the CQC, the series of steps would have to be gone through may well lead to “decisions by numbers”.
Conclusion
Wellbeing Care is an important case. This was the first occasion on which the tribunal considered the new CQC enforcement policy and enforcement tree. The tribunal effectively ignored Enforcement Policy and Decision Tree which, following the inevitably tortuous route laid down by it, mandated closure. This was an eminently sensible decision. It is to be hoped that the tribunal’s approach, which was to put substance over process would be followed in the future.
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