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How the NHS staffing crisis could affect your practice's CQC rating

Ridouts trainee solicitor Oliver Brown explains the regulations that govern staffing requirements in the NHS and how the CQC assesses whether practices have enough suitable staff to meet demand.

Oliver Brown, trainee solicitor, Ridouts

The Institute for Policy Research recently published a report focusing on NHS workforce retention called Should I stay or should I go? NHS staff retention in the post COVID-19 world.

The report highlights the extent of the NHS staffing crisis. It analysed responses from NHS staff between December 2020 and April 2022 and more than two thirds said staffing levels had become worse in this period. In addition, half of the respondents reported morale had worsened, with increased stress and workload. This has contributed to the mass exodus of NHS staff.

Meanwhile, since 2015 the number of fully-qualified full-time equivalent GPs in England has fallen by more than 2,000, which obviously presents a huge challenge for GP practices.

Staffing levels in general practice can affect your CQC rating. Regulation 18 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 governs staffing requirements – and breaching Regulation 18 can have drastic consequences for your inspection rating.

What is Regulation 18?

The purpose of Regulation 18 is to ensure NHS providers deploy enough suitably qualified staff, who are experienced and competent in their roles.

During CQC inspections, inspectors will check whether appropriate levels of support, training, professional development and supervision are provided for staff in your practice. With the current trajectory of NHS staff leaving the sector, it places GP providers under a greater risk of breaching Regulation 18 than ever before.

At Ridouts, we have seen little acceptance from the CQC in respect of considering mitigating circumstances affecting the health and social care sector. This means that despite practices and the rest of the NHS being affected by the widespread staffing crisis, this will not exempt you from the regulatory requirements.

In fact, we have seen the CQC criticise GP providers it believes do not have sufficient staffing levels to meet the needs of service users. This has included criticism on perceived overreliance on temporary staff, such as agency staff.

Overreliance on temporary staff can lead the CQC to draw the conclusion that there is a lack of consistency and thereby failure from the provider to sufficiently deploy staff to meet service user needs. However, there is an important distinction to make between temporary agency staff used for one day, or an agency staff member who has been retained by the provider for a longer period and is clearly familiar with the service.

Despite this the CQC would classify both as ‘agency staff’ and judge them the same. Just because staff are paid through an agency does not mean they are less competent.

What happens to practices with staff shortages?

If the CQC inspects a GP provider and establishes they do not have enough suitable staff to meet current demand, it will deem there to be a breach of Regulation 18.

The consequence of this breach would prevent your GP service being rated any higher than ‘requires improvement’. This is because the CQC’s ratings limiter policy states any provider with a regulatory breach is capped at ‘requires Iimprovement’.

How can practices comply with Regulation 18?

The majority of inspections for GP providers are usually announced two weeks in advance. The first thing practices should do is conduct a ‘mock’ internal inspection and scrutinise staff records in this period.

CQC inspectors are meticulous when reviewing staff records, particularly in respect of picking up gaps in skills, knowledge, qualifications and experience.

In addition, any records relating to security and background checks on staff, including training and appraisal records will also be subject to scrutiny. Pay particular attention to this area when reviewing internal records. Incomplete employment histories or lack of DBS checks are quick wins for the CQC in forming an assertion that you are in breach of Regulation 18.

It is imperative that GP practices challenge the CQC on points in the inspection report that they do not agree with, particularly if these assertions have contributed to a breach of a regulation. GP providers should not hesitate to challenge the CQC’s inspection findings via the ‘factual accuracy challenge' process, especially if you believe is not a fair or accurate representation of your GP service. This process allows the GP provider to put forward its perspective. If there is no challenge the CQC’s perception is automatically accepted as the truth.

Resolving the current NHS workforce staffing crisis will take years. Therefore it is vital that GP providers continue to mitigate these staffing pressures by staying informed of the latest guidance and law to avoid Regulation 18 breaches.

If your GP service is negatively rated in a draft inspection report do not hesitate to contact us. At Ridouts we specialise in providing GPs with bespoke advice tailored to their needs to help navigate the regulatory demands of the CQC. This includes working alongside GP providers and assisting them in challenging the CQC via the factual accuracy challenge process.

  • Oliver Brown is trainee solicitor solicitor at Ridouts
  • If you require assistance or advice in relation to challenging CQC draft inspection reports or challenging other CQC enforcement action, our specialist solicitors can help. Please contact Ridouts Professional Services Ltd at info@ridout-law.com or call 020 7317 0340.
Ridouts Professional Services Ltd

Ridouts is a law firm that only acts for care providers. We provide legal, operational and strategic advice when providers are faced with matters that could negatively impact their businesses, such as poor CQC inspections and enforcement action. www.ridout-law.com

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