CQC Notifications and how to challenge a fixed penalty notice

CQC Notifications and how to challenge a fixed penalty notice

All providers are used to making safeguarding referrals to their Local Authority (LA), but do you always make a referral to the CQC too?

Do you know when you need to?

Do you just refer everything?

Have you got a policy or checklist to ensure you refer when appropriate?

Providers have a statutory responsibility pursuant to the CQC (Registration) Regulations 2009 to make notifications to the CQC when certain matters occur.

  • Reg 14 – Notice of Absence – when the Service Provider or Registered Manager is going to be absent for a continuous period of 28 days.
  • Reg 15 – Notice of Changes – when there are corporate changes or the Registered Manager leaves.
  • Reg 16 – Notification of death of a service user – when someone dies who you care for (unless you are a health service body) – a notification must be made without delay if the death occurred whilst services were being provided in the carrying on of a regulated activity and the death cannot in the reasonable opinion of the registered person, be attributed to the course which the person’s illness or treatment OR even if you are no longer supporting the person if their death has or may have resulted from the carrying on of a regulated activity.
  • Reg 18 – Notification of other incidents – this is the wide reaching general “catch all” provision which many Providers unwitting fall foul of – if in doubt – report it through.

The incidents referred to in Reg 18 are:

  1. Any injury which has resulted in
    • An impairment that is not likely to be temporary
    • Changes to the structure of the service user’s body
    • Prolonged pain or prolonged psychological harm
    • Shortening of life expectancy
  2. Any injury which requires treatment to prevent
    • Death or
    • Any injury which if left untreated would result in one of the sub-categories at number 1 above
  3. Any abuse or allegation of abuse of a service user
  4. Any incident reported to or investigated by the police
  5. Any event which might threaten your impact to deliver the service eg staff shortages /power supply issues for longer than 24 hours / physical damage to property that is likely to impact on care and treatment or failure of fire alarms or safety devices for more than 24 hours.

Failure to comply with this long list of notifications can result in prosecution by CQC.

To have no notifications is not a sign of an exceptional service. CQC will be far more suspicious of a service with low, or no notifications than they will of one that is making them on a regular basis.

Referring everything to CQC is also a sign of a service that isn’t quite sure of its obligations. I would advise having a policy that looks at when referrals are needed to the LA under safeguarding duties and when referrals are due to CQC.

Failure to notify to CQC when required can result in a Fixed Penalty Notice – rather like a speeding fine, it is a criminal sanction, but with fines starting at £1250 rather than £60 or £70.

If CQC are considering prosecution for failure to notify, a provider will receive a notification of intended prosecution. This allows you to admit the offence, pay the fine and that’s the end of it – but beware – it can result in a Requires Improvement finding at Well Led and Requires Improvement overall due to the breach and prosecution. Whilst it might be tempting to avoid hassle or legal fees, accepting the fine can have business consequences if your CQC rating is likely to impact on your client group and your finances.

Notices of intended prosecution can be challenged – there are lots of occasions where it has been shown that the duty to notify CQC around a particular issue had not in fact been triggered, and particularly if a service can demonstrate that they followed a process, considered whether to notify and decided that the duty was not engaged, then it is worth fighting the notice.

CQC also have to be clear that there is a public interest in proceeding with a prosecution, so if the service is under a different Registered Manager, has closed down or had some other significant change to it such that the failure to notify was isolated and should never happen again, then it might be difficult for CQC to show that there is a public interest in proceeding.

IN SHORT – don’t panic if you get a Notice of Intended Prosecution – pick up the phone to Hempsons social care advice line for 15 minutes free advice on 01423 724028 and we can discuss the pros and cons of paying the fine or fighting the notice.