Care Quality and Inspection and Regulation

The Care Quality Commission is the independent regulator of all health and social care services in England (not Wales or Scotland, please note). CQC’s website can be found here: www.cqc.org.uk. Where the accuracy of what this page contains may be critical to your interests, such as if you are a provider of care, under the scrutiny of CQC, you are strongly recommended to check online because the policies of any public body change with time and this site cannot guarantee to be in synch with whatever is most currently updated by the organisation itself.

CQC’s job is to make sure that are provided by hospitals, dentists, ambulance, care homes and services in people’s own homes and elsewhere meets standards of quality and safety laid down by government. It also protects the interests of vulnerable people, including those whose rights are restricted under the Mental Health Act.

Healthwatch is the new independent consumer champion (operating from 2013 onwards) for both health and social care. It will exist in two distinct forms – local Healthwatch, at local level, and Healthwatch England, at national level. The aim of local Healthwatch will be to give citizens and communities a stronger voice to influence and challenge how health and social care services are provided within their locality. Local Healthwatch will also provide or signpost people to information to help them make choices about health and care services. Local Healthwatch will make recommendations to Healthwatch England to advise the CQC about special reviews or investigations to conduct (or, where the circumstances justify doing so, make such recommendations direct to the CQC).

Healthwatch is explained at the end of this topic, the focus of which now turns to the Care Quality Commission.

 

The Care Quality Commission

CQC is the current name of the regulator of care services. It took over from the CSCI, which succeeded the NCSC, which itself took over what used to be local authority registration and inspection units, in the days when only care home services were regulated at all.

CQC’s functions are registration and inspection against standards – unannounced inspections. Findings are published on its website. In between inspection there is monitoring of information held on all services, from wherever it might have come. As an organisation, it asserts that it puts the views, experiences, health and wellbeing of people who use services at the centre of its work. It is an organisation which has been in the glare of publicity, usually of a critical nature, when there have been scandals in the care sector, such as the abuse of people with severe learning disabilities at Winterbourne View. It is an organisation currently (ie in 2012) going through a consultation about its future strategic direction.

These are the powers it uses in order to improve services found wanting: it can

  • Instruct care managers to produce a plan of action to make improvements
  • Issue a warning notice, asking for improvements within a short period of time
  • Restrict the services that the care provider can offer
  • Restrict admissions to the service
  • Issue a fixed penalty notice
  • Suspend the care provider’s registration
  • Cancel the care provider’s registration
  • Prosecute the care provider.

CQC asserts that it shares information in order to respond quickly and jointly when risks are identified, working closely with Monitor, the Foundation Trust Network and the Foundation Trust Governors’ Association, and maintaining a relationship with 150 LINks (local involvement networks, to be known as local HealthWatch from October 2012 and operating in full form from 2013) as well as overview and scrutiny committees for health and social care. It says that its officers are in regular contact with local authorities in England, particularly to monitor concerns about people at risk of abuse.

CQC does not deal with complaints about local authorities, or social care services, or NHS services, in the sense of trying to resolve individual complaints. It makes it clear that the first thing a dissatisfied person should do is to tell the management of any provider service. By law, every provider of care services must have an efficient procedure for dealing with complaints. After that, a person can contact the Health and Parliamentary Ombudsman at www.ombudsman.org.uk.

If a person’s complaint is about a service provided through a privately purchased package from a care home or home care agency, one can contact the Local Government Ombudsman at www.lgo.org.uk.  There is a booklet called ‘How to complain about a health or social care service’ on the CQC site.

Enforcement by CQC – its regulatory remit

The following information is taken from the CQC’s own overview of its enforcement role:

“The Health and Social Care Act 2008 and associated regulations give us a variety of powers to intervene and take action where the requirements of the Act and regulations are not being met. We are also able to take action against some other breaches of the law if we see fit.

Registered persons (described as providers and or managers in the Judgement framework) have to comply with different requirements under the Health and Social Care Act 2008. They must apply for registration and show that they can comply with legal requirements. After registration, they must comply with:

  • Any conditions of registration.
  • The relevant sections of the Act, the Care Quality Commission (Registration) Regulations 2009, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 and any other relevant legislation.
  1. Our Guidance about compliance: Essential standards of quality and safety:
  • Describes the outcomes we expect people using a service will experience when registered persons are compliant with the regulations. It is designed to help registered persons comply with a legal requirement (which is described as compliance with one or more regulations in the Judgement framework).

 

  1. The Act and Regulations:
  • Place duties on registered persons.
  • Provide CQC with powers to monitor and inspect regulated activities and to gather information about whether relevant requirements are being met.
  • Provide CQC with powers to prosecute unregistered providers of regulated activities.
  • Provide CQC with civil powers to ensure compliance by limiting or changing what a registered person is allowed to do, or by temporarily or permanently stopping them from carrying on regulated activities.
  • Provide CQC with powers to prosecute, fine and warn registered persons who fail to comply with legal requirements.

 

  1. Our Judgement framework:
  • Helps our inspectors to reach judgements about a registered person’s compliance with the essential standards.
  • Sets out how we go about determining our regulatory response and how we will make decisions about responding to registered persons who fail to comply with legal requirements (which is described as non-compliance with one or more regulations in the Judgement framework) by taking into account the impact on people using the service.
  • Should be used alongside the Enforcement policy to help determine our regulatory response.

 

  1. We will take into account the likely impact of regulatory or enforcement action on people who use services, their carers and families and the wider community when deciding what kind of action to take.

 

Regulatory response

  1. Where we have evidence that registered persons are not currently meeting legal requirements, or have demonstrated repeated non-compliance over time (refer to the Judgement framework), we will consider what action to take. This may be a compliance action or enforcement action.
  2. We will take account of any ethnic or cultural requirements of individuals when initiating any regulatory response to ensure we manage the process fairly. For example, a minority ethnic healthcare provider may have specific needs around how non-compliance is enforced e.g. translation needs, gender-specific staff, and the appreciation that around religious or cultural festival periods it might take longer to respond to communication.
  3. The action we would normally take is set out in our regulatory response escalator.

We will use discretion and take account of registered persons’ varying circumstances so that we can be proportionate in our response. The use of the escalator may not follow a linear order even in the event of an identified breach of legal requirements, as every breach is judged on an individual basis and our response to it is proportionate to the risk for people who use services. CQC has the right to exercise discretion in determining its regulatory response to any breach of requirements.

  1. Multiple breaches with a moderate impact have four possible options of action to consider. In this case, we will consider the circumstances and all information available to us to reach a decision about what is the appropriate action to take. This will include consideration of the risks and harm the breach may have on the people who use the service.
  2. Where enforcement is needed, we can take action under ‘civil law’, ‘criminal law’ or both.
  3. We take civil enforcement action when we need to protect people who use services from harm by improving the care they receive or preventing the provision of unsafe care.
  4. We take criminal law action when we want to hold a registered person to account for causing harm and/or failing to meet legal requirements.
  5. Civil enforcement and criminal law can be used together if people who use services need protection from harm and a registered person needs to be held to account.
  6. We can use criminal law to prosecute unregistered providers of regulated activities.
  7. Our overarching concern and priority is to protect and promote the health, safety and welfare of people who use the services we regulate, and to improve the quality of care they receive.
  8. We will be proportionate in how we work with registered persons and others to achieve compliance with the Act and regulations:
  • We will assess any risks to people using, working in and visiting services, and where  necessary, take formal regulatory or enforcement action that is proportionate to those risks.
  • Where a service fails to comply with legal requirements, we will take formal regulatory or enforcement action.
  • Where legal requirements are not being met, we will choose the most proportionate way of achieving sustained compliance or we will remove the person’s ability to provide or manage care if we consider that compliance could not be promptly achieved or sustained.
  • Where legal requirements continue not to be met despite formal regulatory action being taken (compliance actions), we may escalate to enforcement action (see regulatory response escalator table Appendix A in the online document).
  1. We will be accountable for our decisions:
  • This policy clearly describes our approach to enforcement, and it can be used when testing our actions and to hold us to account.
  • We positively welcome comments and feedback about our enforcement work and how we have used our powers. We have a complaints procedure that people can use to express concerns about our work and decisions.
  • The law provides the mechanisms for registered persons to make representations and appeals against some of our decisions. We will inform registered persons about how they can use these.
  1. We will be consistent in applying our Enforcement policy:
  • Consistency does not mean that we will use the same enforcement option every time a particular legal requirement is not met. It does mean that we will use the same criteria and approach when deciding how to respond to noncompliance and the policy sets out the actions we will normally take.
  • These criteria include taking into account:

– The impact on and outcomes for people, carers and families, and communities, including the degree of risk to which they have been exposed by the non-compliance.

– Whether we have found non-compliance with the same regulation previously.

  • We will always try to avoid duplicating the work of other bodies that may have contractual relationships, service level agreements, performance management responsibilities or regulatory relationships with us or the registered person.
  • We will seek agreement on processes for identifying the most effective levers for achieving compliance, wherever they are held.
  • We will use our powers whenever this is appropriate.
  • We will collect information about and monitor our enforcement activity to check that we are being fair and consistent in our approach.

 

  1. We will be open and transparent about our approach to enforcement:
  • We will consult on any changes to this policy (as required by law) and produce guidance and information about it in plain English and in a variety of formats (on request), so that it is accessible to all people who use services, their families and carers, providers, and the public.
  • We will publish information about our enforcement activity in an annual report.

 

  1. We will target our resources where they are most needed:
  • We will gather and review data and trends about our enforcement work, so that we can understand:

– The scale of non-compliance.

– How we are responding to it.

– The outcomes and impact of our enforcement work for people, families and communities.

  • We will take into account equality and diversity in enforcement. To help us, we will develop ways of gathering information about:

– The enforcement options we choose in circumstances with a relevant diversity concern, and how the diversity concern is recognised.

– Outcomes for people, carers, families and communities flowing from  non-compliance that relates to inequality, direct or indirect discrimination, and barriers associated with the diverse nature of our society, and that breach people’s human rights.

– Whether this policy is being consistently applied with due regard to the age, any disability, gender, gender identity, sexual orientation, race and ethnicity, religion or belief, marriage or civil partnership status or any pregnancy or maternity of providers, managers and people who use their services.

  • We will balance the likely consequences of taking regulatory or enforcement action against the risks of taking no action.

 

  1. We will:
  • Ensure that our work is led and undertaken by appropriately trained and skilled staff.
  • Be consistent in applying our approach to enforcement across all regulated sectors.
  • Follow up enforcement activity in a timely fashion.

 

  1. Our enforcement powers under the Health and Social Care Act 2008 are explained in detail below. We have prepared additional detailed operational guidance for individual processes and types of action.

 

  1. Registered persons have a duty to make sure that the regulated activities they are responsible for are carried on and managed in a way that complies with legal requirements.

 

  1. Where we have started taking action against a registered person and subsequently find failure to comply with a different regulation, we can begin additional, separate regulatory or enforcement action against them

 

  1. Where a registered person demonstrates ‘low level’ but continuous or frequent failure to comply with legal requirements, we will usually escalate our enforcement action so that problems are dealt with swiftly and firmly, using our ‘regulatory response escalator’. We will always follow up enforcement action to ensure that compliance is achieved.

 

Compliance actions

  1. Compliance actions are not enforcement action but a precursor to enforcement action and they inform a registered person that they are not compliant with the relevant legislation. Setting compliance actions is not civil or criminal action, but is an important and significant step to take.

 

  1. Where a registered person is not complying with a regulation, but people are not at immediate risk of harm, we will use our power under Regulation 10 (3) of the Regulated Activities Regulations to require a report showing how they will achieve compliance and the action they will take to do so. Failure to send us a report can in itself lead to enforcement action.

 

  1. We will say which regulation is not being met when setting compliance actions, and will give a timescale for the registered person to return a report showing the action they will implement to achieve compliance.

 

  1. Compliance actions are replicated in published reports.

 

Warning notices

  1. Warning notices tell a registered person that they are not complying with a condition of registration, requirement in the Act or a regulation, or any other legal requirement that we think is relevant. We can serve notices about previous failures to comply with legal  requirements or about continuing non-compliance.

Where a notice is about continuing non-compliance it will include a timescale by when compliance must be achieved. If a registered person is still not complying with the requirement when the timescale expires, we will consider our response with reference to the regulatory response escalator. This could lead to further action under civil or criminal law.

 

  1. We can also serve warning notices about failures to comply with legal requirements under other Acts of Parliament that we consider are relevant, for example the Mental Capacity Act 2005.

 

  1. There are important rules relating to the way we can use evidence on which warning notices are based. We will take these rules into account when deciding whether a warning notice is appropriate. We cannot use warning notices against unregistered persons.

 

  1. The regulations allow us to publish warning notices as long as registered persons are given the opportunity to make representations where we intend to publish.

Note: a provider’s representations about warning notices are about the right to publish the warning notice, not about the actual judgement of the warning notice. We will publish a summary of the warning notice if no representations are received, or if any representations we do receive are not upheld.

The factual accuracy check on the draft report provides an opportunity for providers to challenge the content of the report. The factual accuracy process may legitimately challenge facts that directly impact on the judgement arrived at in the report. If such a challenge is upheld through the factual accuracy process and the subject of the challenge goes to the heart of the enforcement action taken, it may consequently lead to a decision not to publish the warning notice. We will not publish any summary of a warning notice until the factual accuracy checking process is complete.

 

Criminal law

  1. Criminal law procedures can be used in response to breaches of certain regulations and sections of the Act. They can be taken against any registered person, or, in the case of a service that is operating without registration, the person who appears to be carrying it on. They can also be used against any person who obstructs us in the course of an inspection and against persons who have applied to us to be registered, where they have made a false or misleading statement.

 

  1. All investigations of criminal offences will be carried out having regard to the Police and Criminal Evidence Act 1984 principles and Code of Practice.

 

  1. We may use these:
  • Where a regulated activity is being carried on without registration.
  • Where a registered person has not responded to a compliance action and continues to fail to meet legal requirements.
  • When a registered person is not complying with the requirements of registration under their conditions.
  • Where any people (not just registered persons) are being obstructive to us in the course of inspection.
  • When a registered person or any person who has applied to be registered has been dishonest.
  • When people have or may suffer harm because a registered person has failed to comply with a relevant regulation or requirement of the Act.
  • To fine, caution and/or prosecute registered persons in response to their failures to comply with certain regulations and requirements of the Act.
  • When we have evidence that an offence has taken place.

 

  1. Although we are not required by law to publish details of all criminal law procedures that we undertake, we have a general power to publish this type of information and will normally do so. We must publish information about any offence for which a registered person has been convicted.

 

Penalty notices

  1. We can serve a penalty notice when:
  • A registered person has failed to comply with certain requirements of the Act or regulations, or
  • A person has carried on a regulated activity without being registered, or
  • A person has obstructed us in the course of inspection, or
  • Where relevant, the offence is continuing when the timescale in a warning notice has expired, and
  • Our evidence meets the standard for a criminal prosecution, and
  • We consider that swiftly achieving compliance without beginning lengthy and costly proceedings is a realistic alternative to prosecution.

 

  1. The registered person can pay the fixed penalty and dispose of liability for the offence, thereby avoiding prosecution. If a registered person decides not to pay the penalty we can consider using our other enforcement powers; this will normally be to prosecute the person.

 

  1. Any fixed penalty paid to CQC under section 86 of the Act must be repaid by CQC to the Secretary of State.

 

  1. The relevant legal requirements and associated fines are set out in Appendix B of the document online.

 

Simple cautions

  1. We can offer a simple caution to a registered person, an applicant for registration, any person who appears to be carrying on a regulated activity without being registered, or a person who has obstructed us in the course of inspection instead of prosecuting them for any of the relevant offences where:
  • There is clear evidence that the person has committed an offence, and
  • Our evidence meets the standard for a criminal prosecution, and
  • The code for crown prosecutors has been followed, and
  • Where relevant, the offence is continuing when the timescale in a warning notice has expired, and
  • We consider that swiftly achieving compliance without beginning lengthy and costly proceedings is a realistic alternative to prosecution.

 

  1. The offender must admit the offence and be prepared to accept a caution.

 

  1. When deciding whether to caution a registered person we will consider guidance issued by the Home Office (currently HO Circular 016/2008).

 

Prosecution

  1. We have powers to prosecute for certain offences defined in the Act and the regulations made under it, which includes carrying on a regulated activity without registration. Prosecution is a serious enforcement action. It holds registered persons to account for not complying with legal requirements. It can sometimes be appropriate to prosecute at the same time as taking other enforcement action, for example suspending registration. We may consider prosecuting more than one offence at the same time.

 

  1. Under certain circumstances we will serve a warning notice first to try and get the registered person to achieve compliance before we prosecute.

 

  1. We will not begin prosecution proceedings unless we are satisfied that:
  • It is in the public interest.
  • Our evidence meets the standard for a criminal prosecution.
  • The code for crown prosecutors has been followed.
  • Where relevant the offence is continuing, when the timescale in the warning notice has expired.
  • There is a realistic prospect of conviction.

 

  1. Where another regulator has the power to prosecute, we will coordinate activity at an early stage with them to ensure the right action is taken, to avoid inconsistency, and to ensure that any proceedings taken are for the most appropriate offence (see Section 4).

 

  1. Where we successfully prosecute a provider, the court will decide on the fine that is imposed, and may issue a separate fine in relation to each conviction, where there is more than one. The court may impose a prison sentence as well as, or instead of, a fine following conviction for carrying on a regulated activity without being registered.56. The offences and maximum court fines are set out in Appendix B of the online document.

 

Civil enforcement

  1. Civil enforcement procedures follow processes laid down in the Health and Social Care Act 2008. They are used to impose temporary or permanent changes on a person’s registered status.

 

  1. We may use these:
  • When registered persons have failed to respond to compliance actions, warning notices, relevant criminal procedures or intervention by our partner agencies, or when people are at risk of harm.
  • To limit how an activity is provided.
  • To stop a registered provider from carrying on an activity, temporarily or permanently.
  • When people have or may suffer harm because a registered person has failed to comply with legal requirements.
  • Where a registered person is not capable of carrying on the regulated activity, either at all or under current registration conditions.
  • Where a registered person or any other person has been convicted of a relevant offence.

 

  1. We are required by law to publish certain details of civil enforcement. We are also required by law to publish details of any action taken under CQC’s urgent powers.

 

Impose, vary or remove conditions of registration

  1. Registered persons always have certain routine conditions attached to their registration. These conditions include the locations where the regulated activity can be carried on or managed. For some activities that may include providing accommodation, there will usually be a limit on the number of people who may use the service at any one time. These registration conditions are usually agreed with registered persons when they apply for registration.

 

  1. Imposing, varying and removing conditions of registration is a flexible enforcement process that we can use in a variety of different ways to keep people safe and ensure that legal requirements are met. For example, we may use a condition to stop a regulated activity at one location while the registered person can continue with this regulated activity at their other locations.

 

  1. We begin formal proceedings in relation to amending conditions of registration by sending the registered person(s) a Notice of Proposal and ‘evidence bundle’ that sets out our case. Registered persons have a right to make representations to us against our proposal before we make a final decision. If we decide to ‘adopt’ our proposal we send a Notice of Decision. Registered persons have a right of appeal to an independent tribunal against our Notice of Decision. We have written separate detailed guidance about the representations and appeals processes.

 

  1. We also have powers to impose, vary or remove conditions using urgent procedures.

 

Suspension of registration

  1. We can suspend the registration of a registered person for a specified period of time, and also extend a period of suspension. Suspension of registration is a serious step that can have major consequences for a registered person. Suspension affects all of the locations where the relevant regulated activity is carried on or managed by the registered person. We will therefore give particular attention to the likely outcomes of taking this action. Suspension can, however, give a provider the chance to work towards achieving compliance and then resume carrying  on or managing an activity. We follow the same notice of proposal and decision procedure described above when we wish to suspend registration.

 

  1. We can also suspend or extend a period of suspension using urgent procedures.

 

Cancellation of registration

  1. Our most powerful sanction is to cancel a registration. As with suspension, this will affect all the locations where the registered person carried on or managed the relevant regulated activity. Cancellation normally follows considerable efforts to get registered persons to comply with legal requirements, but where necessary, we can use the cancellation process without first having followed other processes.

 

  1. We can also cancel registration using urgent procedures.

 

Urgent procedures

  1. When using our urgent powers to vary or impose conditions, or suspend registration, we will issue a Notice of Decision to the registered person. We will only take this step if we believe that if we do not, a person will, or may be, exposed to the risk of harm.

 

  1. We will consider using urgent procedures to cancel a registration as a last resort where the problem cannot be resolved in any other way and where a person(s) is at serious risk to their life, health or wellbeing.

 

  1. When using our powers to cancel a registration using urgent procedures, we must apply to a justice of the peace for a court order. In these circumstances we will wherever possible:
  • Tell the registered person in advance about our application to cancel their registration using urgent procedures.
  • Only make an application without telling and involving the registered person in exceptional circumstances, such as when their whereabouts are not known and after considerable effort has been made to locate them.

 

Where we cannot give the registered person notice of our application to a justice of the peace we will make a full and frank disclosure of all relevant evidence and confirm that we have done so in our application.

 

  1. Action under urgent procedures takes immediate effect. Registered persons have the right of a fast track appeal to an independent tribunal.

 

  1. When serving an Order or Notice of Decision on a registered person using urgent procedures, it will always include information about:
  • Our memorandum of understanding with the First-tier Tribunal about a ‘fast track’ option for appeals when we have used the urgent procedures.
  • How the registered person can appeal against the urgent cancellation order or notice.

 

Representations and appeals

Representations

  1. Registered persons have the right to make representations to us about certain types of enforcement action. We have produced separate detailed guidance which is available on our website about representations on the following:
  • Publication of warning notices.
  • A notice of proposal to impose, vary or remove conditions of registration.
  • A notice of proposal to suspend a registration, or to extend the period of a suspension of registration.
  • A notice of proposal to cancel a registration.

 

  1. Providers or bodies that are investigated under our section 48 powers can also make representations to us about our subsequent report before it is published.

 

Appeals

  1. Registered persons have the right to appeal to an independent tribunal against enforcement action using the civil enforcement procedures (this includes action under urgent procedures, but in those cases the tribunal will ensure any appeal is fast tracked). We have produced separate detailed guidance about this. Appeals must be lodged within 28 days of the service of:
  • A Notice of Decision.
  • A notice of imposed, varied or removed conditions using the urgent procedures.
  • A court order to cancel a registration using urgent procedures.

 

  1. There is no right of appeal to the Tribunal in relation to warning notices, penalty notices or conviction for offences.

 

Coordination with partner agencies

  1. When we take action to cancel or suspend a registration, or to impose, vary or cancel conditions of registration using either normal or urgent procedures, we will coordinate with other relevant bodies. We will always carefully consider the balance of risk between different options.

 

  1. The Regulations require and authorise us to publish certain information relating to enforcement action.

 

  1. Information about the enforcement action that we take will be included in our review of compliance reports. We will also publish a summary of information about the enforcement action taken against each provider on our website.

 

  1. Section 39 of the Act requires us to send copies of notices relating to enforcement action to prescribed bodies and any other persons CQC considers appropriate.

 

  1. We aim to publish an annual report on our enforcement activity, in order to promote learning and review trends.

 

Working with partner agencies and their regulatory, performance management and commissioning processes

  1. A number of partner agencies have powers, duties and/or responsibilities in relation to services we regulate. We can work with them to ensure registered persons achieve  compliance with the essential standards. This is designed to help registered persons comply with legal requirements.

 

  1. A number of regulators can use their powers and processes to achieve compliance. Before we use our criminal law and civil enforcement powers, we will consider whether another body or bodies may be better placed to intervene. If so, we will arrange a meeting of relevant agencies.

 

  1. Where we and another enforcement body, for example the police or the Health and Safety Executive, have the power to take action about the same circumstances, we will work together to ensure that we coordinate our respective action at an early stage and do not duplicate action against registered persons. This will avoid inconsistencies and ensure that action is taken by the most appropriate body.

 

  1. Where there are allegations of actual abuse involving people in the services we regulate, we will inform the appropriate local authority using our adult safeguarding and child protection procedures. We will work with all other relevant agencies to ensure that people are appropriately protected using relevant local safeguarding procedures.

 

  1. We will work with all appropriate organisations when using our enforcement powers, depending on the kind of provider. For example, we will work with:
  • Monitor, the independent regulator of NHS foundation trusts.
  • Relevant national, regional and local NHS bodies in relation to NHS trusts and services provided or funded by NHS bodies locally.
  • Local authorities in relation to adult social care services.

 

  1. This will help us to take into account what alternative services are available for the people affected by our action, consider alternative action where appropriate, and encourage joint working.

 

  1. Monitor’s role is to ensure that NHS foundation trusts operate in an efficient, effective and economic manner. We will not duplicate this role. Failure by an NHS foundation trust to comply with our legal requirements may also be a breach of Monitor’s terms of authorisation, and could lead to intervention by them.

 

  1. Our role in relation to all providers is to ensure that they meet the essential standards of quality and safety. We will always liaise with Monitor before taking enforcement action against an NHS foundation trust. The only exception to this will be where we take immediate action using urgent procedures to protect the safety of people who use services.

 

  1. Section 48 of the Act gives us powers to carry out investigations into the provision of English NHS health care and social care, including related functions of local authorities. We must also carry out an investigation when asked to do so by the Secretary of State for Health.

 

  1. We may use our powers to investigate where we become aware of evidence of a problem that poses a significant risk to the health, safety or welfare of people receiving health or social care, often due to systemic failings, and where enforcement action has not resulted in the required improvements. Investigations can look specifically or generally at any issue to do with different kinds of health or social care, how particular functions are carried out or the provision by particular people or bodies.

 

  1. Investigations allow us to look into actual or potential serious systemic failings, for example where lack of coordination between sectors and/or services leads to harm.

 

  1. We use investigations to understand problems in delivering care and the contributory factors that give rise to them, both within the body itself and, where appropriate, within the broader care delivery system.

 

  1. We will use our investigation and enforcement powers independently. However, investigations may uncover evidence that leads us to take subsequent enforcement action against individual registered persons/providers or to refer issues to other regulatory / enforcement bodies.

 

  1. Enforcement action following an investigation may include recommending special measures in relation to an English local authority and serving notices on relevant persons requiring action to deal with failures. An investigation may identify suspected non-compliance with the regulations and these may be subject to further enforcement action as a separate exercise.

 

Healthwatch – from 2013

Healthwatch is the new independent consumer champion for both health and social care. It will exist in two distinct forms – local Healthwatch, at local level, and Healthwatch England, at national level. The aim of local Healthwatch will be to give citizens and communities a stronger voice to influence and challenge how health and social care services are provided within their locality. Local Healthwatch will also provide or signpost people to information to help them make choices about health and care services.

The Health and Social Care Act 2012 sets out that local Healthwatch will be established in April 2013. Until then Local Involvement Networks (LINks) will continue to operate as usual.

Existing LINk functions that local Healthwatch will carry out (as set out in the Local Government and Public Involvement in Health Act 2007, Section 221 (2)):

  1. a) promoting, and supporting, the involvement of people in the commissioning, provision and scrutiny of local care services
  2. b) enabling people to monitor for the purposes of their consideration of matters mentioned in subsection (3), and to review for those purposes, the commissioning and provision of local care services
  3. c) obtaining the views of people about their needs for, and their experiences of, local care services
  4. d) making views such as mentioned in paragraph (c) above known, and reports and recommendations about how local care services could or ought to be improved to persons responsible for commissioning, providing, managing or scrutinising local care services.

 

The matters referred to in subsection (2) (b) are:

  1. a) the standard of provision of local care services
  2. b) whether, and how, local care services could be improved
  3. c) whether, and how, local care services ought to be improved.

 

Additional LHW functions:

  • provide advice and information about access to local care services and about choices that may be made with respect to aspects of those services
  • reach views on the standard of provision of local care services, and whether, and how, local care services could or ought to be improved
  • make those views known to the Healthwatch England committee of the Care Quality Commission
  • make recommendations to Healthwatch England to advise the CQC about special reviews or investigations to conduct (or, where the circumstances justify doing so, make such recommendations direct to the CQC)
  • make recommendations to Healthwatch England that it should publish a report on a particular health or social care matter
  • give Healthwatch England such assistance as it may require to enable it to carry out its functions effectively, efficiently and economically.

 

Definition of ‘local people’:

s.182(8) …’local people’, in relation to a local authority, means

  1. a) people who live in the local authority’s area,
  2. b) people to whom care services are being or may be provided in that area,
  3. c) people from that area to whom care services are being provided in any place,

and who are (taken together) representative of the people mentioned in paragraphs (a) to (c);’.

 

Commissioning Healthwatch arrangements locally:

The Act states that local authorities will have a local Healthwatch organisation in their area from April 2013, but will have the flexibility to choose how they commission it to achieve best value for money for their communities. This may involve a tendering process or a grant funded route. Local Healthwatch will be funded by local authorities and held to account by them for their ability to operate effectively and be value for money.

A local Healthwatch will be an independent organisation, able to employ its own staff and involve volunteers, so it can become the influential and effective voice of the public. It will have to keep accounts and make its annual reports available to the public.

In addition, the Act sets out that local authorities will provide an advocacy service to people who wish to make a complaint about their experience of the local NHS from April 2013. This does not extend to providing an advocacy service to complain about social care…

Local authorities will have the responsibility to commission the advocacy service from an appropriate provider. This may be their local Healthwatch, or it may be a different organisation contracted specifically to provide NHS complaints advocacy services.

Local Healthwatch will:

  • have a seat on the new statutory health and wellbeing boards, ensuring that the views and experiences of patients, carers and other service users are taken into account when local needs assessments and strategies are prepared, such as the Joint Strategic Needs Assessment (JSNA) and the authorisation of Clinical Commissioning Groups
  • enable people to share their views and concerns about their local health and social care services and understand that their contribution will help build a picture of where services are doing well and where they can be improved
  • be able to alert Healthwatch England, or CQC where appropriate, to concerns about specific care providers, health or social care matters
  • provide people with information about their choices and what to do when things go wrong
  • signpost people to information about local health and care services and how to access them
  • give authoritative, evidence-based feedback to organisations responsible for commissioning or delivering local health and social care services
  • (LHW may) help and support Clinical Commissioning Groups to make sure that services really are designed to meet citizens’ needs
  • be inclusive and reflect the diversity of the community it serves.

 

Powers: hardly any!

Local Healthwatch has roles and functions, and hardly any powers.

 

 

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