Direct and Indirect Regulation

1. Direct and Indirect Regulation Peter Grose Head of Healthcare

2. Direct Regulation There are several different forms of regulation affecting the care sector, including : • Care Quality Commission • Health and Safety • Police • Fire Service • Environmental Health

3. Indirect Regulation In addition, there are other forms of “regulation” which are not set out in formal legislation but which can still have a highly detrimental affect on the operation of a business, most notably: • Local Authority or PCT contract monitoring • Safeguarding • Coroner • Media esp. after Winterbourne View and Southern Cross saga

4. Care Quality Commission • The registration and regulation body governing the operation of NHS, independent healthcare and adult social care • From October 2010 – one size fits all legislation • Offence to carry on a regulated activity without being registered with CQC • CQC Guidance on Compliance – Essential Standards of Quality and Safety (“ESQS”).

5. Care Quality Commission - Reviews CQC reviews of compliance Two types of reviews: • Responsive - will be triggered by specific concern and will concentrate on those areas of concern • Planned - will take place at intervals of between 3 months and two years and assess all regulated activities at a particular location to assess compliance Reviews will consider information from: • Quality and Risk Profile • Inspections – a review ‘may’ include an inspection • Provider Compliance Assessment • CQC will make a judgement about compliance with each of the key 16 regulations relating to quality and safety of care; • Each regulation will given a judgement of: compliance/minor concern/moderate concern/major concern.

6. Care Quality Commission - Enforcement Wide range of civil and criminal enforcement powers available to CQC 1. Civil Enforcement Powers • Warning notice • Impose, vary or remove conditions • Suspend registration • Cancel registration

7. Care Quality Commission - Enforcement 2. Criminal Enforcement Powers • Must first serve warning notice before prosecution • Simple caution • Fixed penalty notice – up to £4,000 for a registered provider or £2,000 for a registered manager • Prosecution for an offence – punishable on conviction with a fine up to £50,000

8. Defence against Prosecution • The Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 provides a new defence of due diligence against proceedings by CQC; • The defence may be used where a provider can prove that it took all reasonable steps or exercised all due diligence to ensure that it complied with the regulation.

9. Other Direct Regulation • Health and Safety • Range of enforcement powers • Police • Wide ranging powers, including the ability to apply for a closure order for the temporary closure of premises associated with significant and persistent disorder or persistent serious nuisance to a community • Offence of ill treatment or neglect under Section 44 Mental Capacity Act 2005 • Fire Service • Environmental Health

10. Indirect Regulation 1. - Local Authority (+ PCT) • Contract monitoring • Ensure contractual standards are being achieved • Safeguarding investigations • Following allegations of abuse or neglect • Blocks on admissions, reduction of fees or contractual action against provider • “Benchmarking” eg OLM 2. - Coroner • Potential adverse findings against a care home • Potential adverse media coverage • Power to make a report under Rule 43

11. Indirect Regulation 3. - The Media • “The Winterbourne Effect” • Winterbourne View closed within two weeks of broadcast of Panorama programme • CQC carried out investigation of entire Castlebeck group and found system failings at majority of locations. • CQC now undertaking targeted programme of inspections of services for people with learning disabilities (including supported living) • CQC likely to take tough enforcement action in any areas of concern

12. PETER GROSE Head of Healthcare Lester Aldridge LLP Peter.Grose@LA-law.com 01202 786163