Viewpoint: A word of warning about CQC warning notices

In October my colleague, Caroline Barker, wrote about the CQC’s new transitional regulatory approach, the shift to inspections based on risk, and how this could impact GP practices.

One of the identified risks of this new approach is that of conclusions, informed by non-triangulated or incorrect evidence arising out of inspections carried out without crossing the threshold. This could lead to knock-on effects in the form of low-level enforcement action such as the issuing of warning notices.

This type of low level enforcement action can quickly escalate to the CQC taking more serious action, so regulatory breaches or warning notices should not be ignored. At Ridouts we have seen an increase in the number of warning notices issued to GP practices in recent times.

What are warning notices?

Warning notices are issued where a practice is deemed to have failed to, or is continuing to fail to, comply with a legal requirement. The CQC can issue a warning notice for a past breach, which has been rectified, if it considers the breach was serious enough.

A warning notice must be issued in writing, and must state:

• the relevant legal requirement that the registered person is not complying with;
• how the registered person did not comply or is continuing not to comply;
• and the timescale within which the registered person must comply.

There is no legally-set timescale for complying with a warning notice and the CQC can set any period which it considers reasonable. In accordance with its guidance, that period must reflect the degree of risk to the safety and welfare of people who use the service and must be a realistic and achievable timeframe.

The CQC must send a copy of any warning notice that it issues to relevant external bodies, such as the CCG, in line with section 39 of the Health and Social Care Act.

The CQC may, and frequently does, decide to publish warning notices more widely which can lead to an incorrect narrative about your practice being placed in the public domain and even adverse press coverage. For these reasons a robust response is important.

Making representations

The CQC’s powers to issue and publish warning notices are discretionary. Although there is no statutory right of appeal against a warning notice a registered person can make representations about it which can include that:

• the notice contains a serious error;
• is based on inaccurate ‘facts’;
• has not been issued in accordance with the legal test;
• makes requirements that are not reasonable or proportionate; and/or
• it would be unfair to publish it.

Thinking about the new transitional regulatory approach, it is easy to see how inaccurate facts could potentially arise out of reviews that take place without crossing the threshold of practices. Disproportionate judgments and conclusions could be reached by purely reviewing documentation, without the same context and explanation that is gleaned during a physical inspection.

If you consider a warning notice has been issued to your practice against that background it is important that you make representations about it. Even if you do not dispute the facts in the notice it is still possible to make representations as to why it should not be published, for example, because it is not in the public interest or because it relates to a historic breach that has already been rectified.

Representations must be made in writing, within 10 working days of receipt of the notice.

CQC response to representations

Once your representations have been reviewed, the CQC can decide to either not uphold the representations, or to uphold them.

In accordance with its guidance there is no decision to partially uphold representations. If they are upheld then the outcome letter should formally record that the warning notice has been withdrawn.

Once the decision as to whether the representations are upheld or not is reached the CQC will then decide whether to publish the notice. If it withdraws a notice it will not publish the details of it and inform any relevant external bodies who had been informed of the notice that it has been withdrawn.

If a warning notice contains an error that can be rectified, but the CQC considers that it is still appropriate to issue it, then it may decide to withdraw the first notice and issue another.

The CQC will rely on any failure to challenge warning notices as evidence that the practice acknowledges the appropriateness of them. This could lead to more serious problems so a warning notice should be taken seriously and responded to.

• If you have received a warning notice, you can contact Ridouts on 0207 317 0340, who can explain your available options.