CQC and the Law of Unintended Consequences

The current prevalence of punitive action taken by the care regulator could ultimately have a negative impact on the people they are tasked with protecting, argues HPC Director Ian Wilkie.

A few years ago, it became apparent to those of us who are required to regularly appraise care homes that the Care Quality Commission was not doing its job. The number of care homes which had not been inspected for over a year, and in some cases more than two years, was nothing short of alarming. It seems likely that the increased burden placed upon CQC at that time in registering all health care services, including doctors’ surgeries and hospitals, effectively meant that their inspectors were desk-bound by administration rather than out in the field monitoring care services. Whilst it was ultimately the terrible events at Winterbourne View Hospital that propelled this systemic breakdown into the public consciousness, it was only a matter of time before something of this nature occurred to draw attention to the failings of the regulatory process.

Overzealous Approach?

Since this episode, CQC has rightly been held to account, along with the care provider in question. No right thinking person would ever wish to see a repeat of the events at Winterbourne View and for that reason, increased scrutiny across the residential care sector has been welcomed. There is a sense amongst care operators however that there has been a somewhat predictable pendulum-swing in the attitude and approach of CQC since the Winterbourne View exposé. The risk is that in attempting to ensure that such events are not repeated, the knee jerk reaction from those at CQC who may be held to account is to become overzealous in their approach to regulating care homes and independent hospitals. It would certainly seem however, in view of reports from operators and advisors in the sector, that such an effect is taking place.

There is no question that the number of embargos placed upon care homes has increased over the last 2 years and a significant proportion of our clients report taking serious issue with interventions from CQC. It may well be the case that the sector is due a root and branch reappraisal and that those operators who have not been providing adequate care should justly be identified and required to improve their services immediately. It seems however that CQC is making increasing demands of care providers without there being any relationship to the funding being offered to provide such care.

No relationship between regulation and fees

One of our clients, a nurse of over 40 years’ experience, recently wrote to CQC welcoming the new management structure as being more responsive, inclusive and listening. However the question was asked as to how CQC balances what it knows local authorities pay for residential care against what it knows to be the actual costs of delivering good care. This particular provider, registered in Bradford, pointed out that the fee paid for residential care by the local authority equated to £2.41 per resident per hour. It was emphasised that whilst understanding CQC is not set up to challenge fees or involve itself in the political arena, surely it had to play a part in recognising how the country pays for care and how this impacts on care delivered.

Initially no response was forthcoming, however our client persisted and ultimately received the following reply from CQC;

“Fees and wage rates are not regulated by CQC and so we have not historically gathered information about these items, nor analysed the relationship between fees, costs, quality and pay rates”.

That one sentence sums up the astonishing disconnect between the regulation of care and the funding of care in the UK. On one hand, we have a regulator doing its best to ensure that the vulnerable in our society are given the care and respect they properly deserve. In doing so, they are making increasing demands of care providers with, it would seem, absolutely no account being taken of the funding being made available. On the other hand, we have local authorities doing their level best to restrict fees and budgets for the care sector resulting in an average uplift across English local authorities in 2014 of only 1.7%.

Care beds being lost

There are signs that this imbalance of increased regulatory expectations coupled with downward pressure on fees is starting to bite. We are beginning to see the closure of established care beds, where seasoned operators are, in effect, throwing in the towel and taking the view that the path of least resistance is to sell their properties for redevelopment rather than continue an increasingly fraught battle with regulators. These are not necessarily the smaller converted properties we may expect and recent examples of this amongst our own clients in the past six weeks include two substantial, purpose built care homes with an aggregate provision in excess of 150 beds.

Those who have been around the sector for a number of years will recall a combination of events around the turn of the millennium, where increased pressure on local authority fees combined with a new regulatory environment resulted, at its peak, in the loss of 10,000 beds per annum from the care sector. If CQC continues down the path of imposing stricter regulatory demands on clients with no heed being taken of the funding available to provide such care, then it is likely we will see a similar pattern today.

Restricted choice

The unintended consequence of our new regulatory environment may therefore be a reduction of care beds in the UK residential care sector. The more concerning consequence of this however, is that demand for places is unlikely to fall and if we continue to supress availability of care beds as a consequence of regulation, commissioners may end up with no choice but to place residents with sub-optimal providers simply as a consequence of the laws of supply and demand. In other words, there will be so few places available that commissioners will have to take whatever beds they can find. That cannot be the best solution and it cannot be what CQC intends as the outcome of its new regulatory environment. Unless and until there is some kind of meaningful dialogue between the regulators and those responsible for funding care, then unfortunately it seems very difficult to imagine any other outcome.

October 2014