Annual report on enforcement activity Care Quality Commission by alicejenny


									                                                                      Agenda Item: 12
                                                                      Paper No: CM/03/12/09


DATE:                   19 SEPTEMBER 2012

TITLE OF PAPER:         Annual report on enforcement activity under the Health &
                        Social Care Act 2008


An overview of the types and numbers of enforcement activity undertaken in 2011/12
including some analysis of constraints and activity undertaken to improve CQC’s response
to the identification of non compliance.


   The Board are asked to note the content of this annual report.

     Executive           Executive and               Executive and         Executive and
     Decision/           Board decision              Board shared               Board
     Board for                                         decision         discussion/Board
    information                                                                decision
The Executive Team     The Board has been          This is a shared     This is for when it is
has made a decision     consulted in order        decision between         clear that it is a
 and the Board has       for the Executive       the Executive Team        specific Board
   been informed         Team to make a               and Board           decision (under
                              decision                                  statutory and legal
                                                                         requirements) i.e.
                                                                            signing off the
                                                                          annual accounts
                                * Check box as required

LEAD DIRECTOR:             Louise Guss and Amanda Sherlock
AUTHOR:                    Louise Dineley, Sarah Woods, Julian Moffatt
DIRECTORATE                Operations & Governance and Legal Services
DATE:                      30th August 2012

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                                                           Agenda Item: 12
                                                           Paper No: CM/03/12/09


AUDIT TRAIL:            This report is an annual Board report.

LINK TO STRATEGIC       The use of our enforcement powers is a critical element
OBJECTIVES AND          of delivery of our strategic objectives.

RISK IMPACT:            Not using when necessary or inappropriate use of the
                        CQC enforcement powers could lead to poor outcomes
                        for people using services, and could lead to injustice.

REPUTATION IMPACT:      Inappropriate use of CQC enforcement powers could
                        lead to successful challenge which would impact upon
                        CQC’s reputation. Imbalance in the use of enforcement
                        powers between sectors may lead to suggestions that
                        CQC is selective in its approach to enforcement.

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                                                                       Agenda Item: 12
                                                                       Paper No: CM/03/12/09

1.    Purpose
      To report on enforcement activity and developments in the last operational year of

2.    Background
2.1   At a meeting of the Board on the 17th November 2010, a report was submitted
      detailing enforcement activity undertaken by CQC during the period of the 1 st
      October 2009 to 30th September 2010. This period straddled CQC’s activities under
      both the Care Standards Act 2000 and the Health & Social Care Act 2008 (“The
      Act”). This report covers 1 April 2011 to 31st March 2012 being the first full year of
      regulation of all services under The Act.

2.2   The Act, enables enforcement to be undertaken within a framework of both primary
      and secondary legislation and includes both criminal and civil enforcement powers:

         The prosecution of criminal offences (criminal enforcement action)

         The issue of a simple caution in lieu of a prosecution of a criminal offence under
          The Act or regulations. This is a criminal enforcement action

         The issue of penalty notices being a fixed level of fine in lieu of prosecution of a
          criminal offence under The Act or Regulations. This is a quasi criminal
          enforcement action

         The cancellation of registration by either urgent or ordinary processes (the
          former of which is made by an application to the Magistrates Courts, the latter of
          which requires service of a notice of a proposal upon the registered provider to
          cancel their registration). Both are civil enforcement actions

         Urgent suspension of registration of a regulated activity (achieved by means of
          issue of a notice which takes immediate effect) and ordinary suspension of
          registration (by means of a proposal to suspend registration of a regulated
          activity at a specified date in the future). Both are civil enforcement actions

         The urgent variation, removal or imposition of conditions of registration (which is
          achieved by means of a notice which takes immediate effect) and the ordinary
          variation, removal or imposition of conditions of registration (achieved by means
          of a notice of proposal that takes effect after the registered provider has had the
          opportunity to challenge our decision). Both these are civil enforcement actions

         The issue of a warning notice relating to a breach of the Regulations – which
          has become the primary enforcement action used by the Commission and
          constitutes a precursor to both civil enforcement action (where the intention is to
          bring about compliance with the requirements of registration) and criminal
          enforcement action (where a warning notice is issued as a pre-cursor to the
          bringing of criminal proceedings).

2.3   CQC has concluded a consultation on a revised Enforcement Policy and
      Judgement Framework which is effective in the current operational year (2012 –

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                                                                                  Agenda Item: 12
                                                                                  Paper No: CM/03/12/09

  2.4     The Enforcement Policy and Judgement Framework for the operational year April
          2011 to March 2012 has been superseded by the 2012-13 Policy and Framework.
          All information included in the report relates to this ‘old’ policy and framework.

  3.      Enforcement Activity
  3.1     The table below shows enforcement activity that has taken place in each quarter of
          the reporting period.

             WN              NoPs to        Prosecution    Penalty      Caution       Suspension     Imposition/
                             Cancel                        Notice                     of             Variation or
                                                                                      Registration   removal of
Apr-Jun      52              6              1              0            0             0              13
Jul-Sep      144             9              0              0            0             1              14
Oct-Dec      200             8              0              0            0             0              12
Jan-Mar      252             9              0              0            2             0              13
Total        638             32             1              0            2             1              52

  3.2     Prosecutions
          The only prosecution that has been undertaken within the period relates to the
          offence of carrying on a regulated activity whilst unregistered. [see details below]

Date               Provider and offence prosecuted                   Outcome
09/06/2011         Dr Waghorn carrying out a regulated activity      Fined £2500 and CQC obtained a costs order
                   when not registered to do so                      of £28,642.96.

  3.3     Penalty Notices
          There have been no penalty notices issued during the period in question. This
          primarily relates to issues around difficulties in bringing prosecution proceedings
          (see limitations paragraph 17) and since a penalty notice is in lieu of a prosecution
          there are legal obstacles to being able to issue such a notice where the bringing of
          a prosecution itself (should the recipient of a penalty notice refuse to pay it)
          presents significant difficulties.

  3.4     Simple Cautions
          Where CQC has evidence that a prosecutable offence has been committed, the
          provider admits the offence, is prepared to accept a simple caution in lieu of
          prosecution and it is in the public interest we can offer such a caution. CQC served
          2 simple cautions (on one provider) in the reporting period. [See details below].

Date               Provider and offence cautioned for                       Outcome
01/02/2012         Astley Care Home Group. Breach of Regulations 9          2 simple cautions
                   and 13. The partnership was not taking proper steps to
                   ensure that service users were protected against the
                   risks of receiving care or treatment that was
                   inappropriate or unsafe by means of carrying out needs
                   assessments of the service users.

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                                                                      Agenda Item: 12
                                                                      Paper No: CM/03/12/09

3.5   Warning Notices (WNs)
      A warning notice is a precursor to both civil and criminal enforcement action. It can
      be used to identify an area of non-compliance with the requirements of registration
      and requires that the Registered Provider take remedial action to remedy the
      failure. Where the failure has already been rectified, a warning notice can be served
      as a record that the failure has been noted and is recorded on the Registered
      Provider’s file.

3.5.1 A warning notice must also be served on a Registered Provider as a statutory
      requirement before CQC can initiate criminal prosecution proceedings in respect of
      a breach of Regulations 9-24 of The Health and Social Care Act 2008 (Regulated
      Activities) Regulations 2010. The purpose of this requirement is to enable the
      provider to achieve compliance and therefore avoid prosecution

3.6   Notices of Proposal (NoPs)
      A Notice of Proposal is a notice to cancel registration or vary, impose or to remove
      a condition upon the registration of provider. We do not propose to compare the
      numbers of notices of proposal for 2011-12 to the number for the previous yeas as
      the changes in both legislation and methods of gathering information would not
      provide a helpful comparison. However taking those changes into consideration
      there has been consistent use of these powers over the period, to affect change or
      remove providers from registration where there was persistent failure to comply with
      the legislation or risks to people using services.

3.6.1 The majority of notices of proposals to impose, vary or remove conditions were
      served upon adult social care providers with a small number being served on
      independent healthcare providers.

3.6.2 Notices served to cancel registration related to a combination of failings in the key
      areas including the provision of safe personal care, care planning, medication
      handling, staff training, risk assessment or the maintenance of adequate records.

      Examples of the use of notices of proposal:

      i) 07/02/2012 - A condition was imposed to prevent further admissions at a nursing
         home. Warning notices for breach of 5 regulations were issued following
         identification of non compliance at two consecutive compliance reviews in 2011.
         The warning notices were not complied within the timescale required.

      ii) 14/01/2012 - A variation to remove a condition of registration, namely a location
          from which a single regulated activity was being provided was completed. The
          location had been visited on 2 occasions during 2011 where non compliance
          with regulations was identified and subsequently no improvements made. The
          non compliance encompassed safety, staffing and care provision and it was
          judged that the registered persons did not have the capacity to improve
          outcomes at the location in a timely way leading to the variation of conditions.

      iii) 9/09/2011 - A notice to prevent admissions at all locations of a corporate
           provider was served following inspections that identified a failure to recognise
           and act on systemic issues in the provision of care to people with complex
           needs. Following the removal of some locations, further inspections at the
           remaining locations, and engagement at provider level, improvements were
           identified which enabled us to withdraw the action.

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                                                                                   Agenda Item: 12
                                                                                   Paper No: CM/03/12/09

  3.7       Urgent cancellation of registration
            Urgent orders are granted by a Justice of the Peace to cancel the registration of a
            provider where there is immediate risk to people such that cancellation is the only
            means by which providers can be prevented from the carrying on of an inherently
            unsafe regulated activity. The Commission works with commissioners of services
            to ensure that the wellbeing of people is prioritised where cancellation is necessary
            under these circumstances. There was 1 urgent cancellation of registration during
            the reporting period.

Date                             Provider and Location           Outcome
June 2011                        Shahid Majeed Sheikh, Sea       Order obtained.
                                 View Lodge. Section 30
                                 application made following
                                 intelligence and safeguarding
                                 concerns being raised

  3.8       Suspension of Registration
            The Act provides for the suspension of a regulated activity using both ordinary (via
            notice of proposal) and urgent procedures (where the activity would be suspended
            immediately). In practice it is likely that the suspension of a regulated activity would
            happen as a result of urgent action because CQC would only be using these
            powers when significant failures have become apparent.

  3.8.1 CQC did suspend one regulated activity using a notice of proposal in 2011/12. This
        was in relation to an unsafe environment identified at a special school. The
        suspension was put in place to ensure that improvements were completed during
        the summer holidays so that students could be safely accommodated on return in
        the autumn term.

  4.        Limitations on the use of enforcement powers
  4.1       As currently drafted, the Act does not support CQC’s ability to make efficient and
            effective use of all of its criminal enforcement powers. Penalty notices and simple
            cautions are designed to provide a ‘short sharp’ tool which benefit both the Provider
            of services and CQC by recognising that a breach of regulations has occurred, but
            not requiring a prolonged process of warning notices and court proceedings.

  4.2       Unfortunately, during the parliamentary process, an amendment to regulations was
            made with the effect of requiring the service of a warning notice (which was
            designed as a low tariff civil law tool) prior to the commencement of a prosecution.
            Subsequent compliance with the warning notice precludes CQC taking any further
            enforcement action (civil or criminal). Such compliance also ‘wipes’ any breaches
            and prevents the prosecution of any offences pre-dating the warning notice. This
            means that the number of fixed penalties and simple cautions we use will be
            reduced because in practical terms we are likely to serve a warning notice in all
            cases where criminal powers may be used in the event that we wish to prosecute,
            and subsequent compliance ‘wipes the slate clean’ even in the case of strict liability

  4.3       Taking civil action in the NHS has been challenging for 2 main reasons. First, if
            CQC seeks to limit the activities undertaken by a particular trust/ hospital we must
            take into account the capacity and ability of the NHS to provide the regulated
            activity within a reasonable distance from where it is being restricted. For example
            in a case where there was very poor provision of maternity services we were

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                                                                       Agenda Item: 12
                                                                       Paper No: CM/03/12/09

      hindered from changing the registration to prevent the activity because there was
      no capacity in the vicinity to meet the needs of pregnant women. Ultimately, the
      best interests of patients were achieved by closely monitoring the situation,
      ensuring that commissioners and the Strategic Health Authority were actively
      working with the Trust to improve the services, and make Monitor and the
      Department of Health aware of our concerns.

4.4   Second, the cancellation of or suspension of any regulated activity for which a
      provider is registered has effect over all locations registered by that provider. This
      means for example that where a Trust has several hospital locations within its
      registration, cancellation or suspension of a regulated activity will take effect over all
      locations. This is of course inappropriate where a problem relates to one location

4.3   CQC continues to find ways to achieve desired results via other enforcement and
      working methods.

5.    Other important activity
5.1   There was a substantial piece of work undertaken in-year focussed upon ensuring
      that all providers who should have transferred their registration to the 2008 Act and
      all primary dental providers have become correctly registered with CQC have done
      so. Processes have been introduced in Operations to track and chase intelligence
      regarding unregistered services.

5.2   Action was taken to improve the quality of enforcement action taken by the sharing
      of exemplar notices, the development of standard templates and an e learning
      package. A considerable enforcement module has been included in the induction
      period for new Compliance staff.

5.3   The quality of enforcement decision making was reviewed by audit of the
      management review process, and a number of staff were trained or received
      refresher training in the use of PACE interview techniques to assist in evidence
      gathering for criminal cases.

6.    Evaluation of the effectiveness of enforcement and associated processes
6.1   There are a number of critical questions regarding the difference made by various
      types of enforcement which will be included in the evaluation activity presently
      under development. In particular, evaluation of the use of warning notices, the
      deterrent effect of criminal and civil enforcement, and the impact of publicity around
      enforcement will be valuable information to enable discussions regarding
      effectiveness, and future resource planning.

6.2   ‘Return to compliance’ data i.e. the time it takes for providers who are subject to
      enforcement to achieve compliance will be a key performance and evaluation
      measure for enforcement and compliance activity. This has been gathered from
      April 2012 following the revision to judgement framework and enforcement policy.

7     Summary
7.1   There were changes to legislation in 2010 that fundamentally changed the powers
      provided to CQC.

7.2   The information relating to 2010/11 encompassed action under 2 regulatory
      frameworks and thus a direct comparison of enforcement activity is not possible.

                                         Page 7 of 8
                                                                    Agenda Item: 12
                                                                    Paper No: CM/03/12/09

      What can be seen from the figures presented is that civil enforcement activity other
      than warning notices has remained fairly constant throughout the year and this has
      been a feature of previous reporting periods. The number of warning notices did
      increase rapidly from the 1st to 3rd quarters but this can be accounted for by the
      changes to legislation and level of inspection activity in those periods. The
      increasing trend has continued through quarter 4 which may be accounted for by
      return visits to services that were previously issued with compliance actions and
      where there is judged to be continuing non compliance.

7.3   There was activity to eliminate the known number of unregistered services. The
      issues in relation to the legislation and its operation were more clearly apparent
      during this year and there will continue to be liaison with the Department of Health
      around how this can be improved.

8.    Conclusion
8.1   The board is asked to note the information contained in this report.

Amanda Sherlock
Director of Operations
30th August 2012

Louise Guss
Director of Governance and Legal Services
30th August 2012

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