In this article, Jeff Swales, one of the Senior Solicitor’s from leading law firm rradar and health and safety specialist, considers the Care Quality Commission’s (CQC’s) Emergency Support Framework (ESF) and the challenges faced by the healthcare service and the wider local care sector beyond the COVID-19 crisis. It is essential that service providers be prepared and know what to expect on an ESF call.
Like most regulators, the CQC suspended inspection visits with the onset of the Coronavirus outbreak in March 2020 and since then has been working on a remote basis. Although routine inspections are not taking place at the moment, the CQC is still fulfilling its regulatory role and has developed an Emergency Support Framework (ESF) which it is following during the pandemic.
This emergency approach is being used in all health and social care settings registered with the CQC during the pandemic and is likely to continue for some time afterwards. The CQC is at pains to stress that the ESF is not an inspection process and that the performance of providers will not be rated because of it.
There are several aspects to the ESF:
- Using and sharing information to target support where it is needed the most
The CQC will use information to identify trends and issues and will share that information with local and national partners to help them mitigate and manage risks and mobilise additional support where needed. They will continue collecting and monitoring data through their usual sources and encouraging feedback from the public and care staff. The information will be used to support the wider health and social care system at all levels.
- Having open and honest conversations
The CQC is calling upon providers to have open and honest conversations with it to enable it to support them in resolving any issues and making the correct decisions to help keep people safe. The nature of the support will vary for different types of health or care services.
Its inspectors will use information about service providers from both existing and new sources to decide whether they need to telephone the service provider for a ‘supportive conversation’. Calls will be prioritised so services perceived to involve higher risks will be called first.
The CQC says that some risks will be caused by factors outside the control of the service provider and seeks to reassure them that they can discuss these factors freely and openly with the inspector.
If the inspector is satisfied that there is a lower risk level, they may decide not to call the service provider, but they will still be available to offer support and service providers are encouraged to call them for advice if needed.
Services with higher risk levels will have more contact from inspectors who will continue to monitor and engage with them until the emergency is over.
If the inspector decides to call a service provider, the conversation will focus on four areas:
- Staff care and treatment – such as appropriate risk management for medicines, infection prevention controls, accessibility and availability of Personal Protective Equipment (PPE) and the assessment of environmental safety for service users, staff and visitors.
- Staffing arrangements – determining if the service provider has the correct number of trained, experienced and skilled workers in place and the use of agency staff and the recruitment process.
- Protection from abuse – ensuring that the service users are protected from abuse, what safeguarding measures are in place and the management of incidents.
- Assistance processes, monitoring and risk management – this will address the effectiveness of monitoring measures the provider has in place for providing high quality care, the ways available to staff to raise concerns and the systems the provider has for maintaining and monitoring its care records.
Calls should ideally take no more than one hour and, where possible, will take place using Microsoft Teams.
- Gathering and recording information
During the conversations, inspectors will note details of the discussion around the four key areas, any challenges faced by the service and by the wider local care system and examples of good practice and innovative ways of responding to challenges which the service provider tells them about.
The conversation is not supposed to be a regulatory process and the CQC therefore says that no recording of the call will be made.
In exceptional cases, they may need to ask for evidence about specific risks and issues.
After the call has concluded, they will email service providers with a summary of the discussion as a record, setting out the questions which were asked and the answers given, a summary of the risks and challenges which were discussed, any sources of support which they suggested and a short summary of whether the service is ‘managing’ or ‘needs supporting’.
This process is not an inspection and the summary record is not an inspection report; no rating will be given. Summary records will not be published on the CQC website.
- Taking action to keep people safe
The primary functions of the CQC are to keep people safe and to protect their rights. The information which they obtain from service providers during a call will help them assess how the service is coping during the pandemic and will be considered in planning their regulatory activity after the pandemic.
During the ESF, the CQC will assess whether the service is either ‘managing’ or ‘needs support’. In the event that the CQC comes into possession of information either during the call or from an external source that causes serious concerns about actual or possible avoidable significant harm or abuse, they will assess the risks and decide whether to provide additional sources of support, arrange a follow up call or use inspection and enforcement processes. If they decide to carry out an inspection, they will follow their existing approaches for that particular sector.
In exceptional circumstances, they will still use enforcement processes but will carefully consider whether it is necessary to take any regulatory action at this particularly difficult time.
- Sharing what they do
The CQC has stressed that it is important that they are open and transparent about their approach. While they will not publish summary records on their website, if they do decide that they need to inspect a service, they will publish an inspection report.
Despite the CQC’s assurances, service providers should not however be complacent about the informal nature of the ESF process. It is entirely possible that concerns identified during the pandemic may lead to a formal investigation when the crisis is over. It is therefore essential that service providers regard the process as important and engage with it accordingly.
The CQC has also made some changes to the way it works during the pandemic. The CQC offices are closed and all staff are working from home. It cannot deal with Royal Mail post so all communications should be online or by email.
It is not necessary to notify the CQC about individual coronavirus cases in a service and notification is only necessary if coronavirus affects the day-to-day running of the business so as to stop the service running safely and properly. Service providers are still required to inform the CQC about the death of a person using their service if the person died while a regulated activity was being provided and their death may have been a result of the regulated activity or the way it was provided.
Applications relating to registrations are being dealt with on a priority basis, particularly COVID-19 registrations. These are applications which:
- intend to deliver services which provide additional health and social care capacity in an area;
- contribute to the control of the outbreak of coronavirus or the treatment of people who have contracted the illness.
Such applications should clearly be marked “COVID-19”.
Taking the appropriate steps for mitigating future problems
Throughout the pandemic and beyond, care providers are still required to comply with the regulations even though the ESF is informal. The CQC can still deem a service not to be ‘safe’ or ‘well-led’ during the pandemic. All providers will still be held accountable and will have to deal with the implications of this. The same applies for any incident at work which leads to someone’s possible or actual exposure to the coronavirus or where there is insufficient and inappropriate Personal Protective Equipment (PPE), both of which should be reported under RIDDOR. Before completing a RIDDOR report, it is advised that you speak to one of our Health and Safety Advisors for further advice on how to do so.
Should staff come under increased pressure so that a human error contributes to a person being infected with the virus or there is a failure of clinical care of the person in a non-COVID-19 related issue, such as a fall that contributed towards their death, then an investigation and future regulatory enforcement action could take place.
Clear record keeping
It is recommended that service providers should do an audit of all their records and document the rationale behind any decision-making process.
It is essential to keep clear and concise records and seek legal advice if there is any uncertainty as to how to improve or apply and update policies and procedures in accordance with the latest government announcements and guidelines.
Creating and keeping a detailed account of the main guidelines and recording dates when procedures and policy changes were made would be useful in terms of evidence for any future liability.
Service providers should also include clear records of where they have secured or tried to obtain PPE and log details of all calls and emails that have taken place with suppliers and local authorities.
Any staff training and guidance on using PPE should also be recorded to show how the training was delivered (virtually or in other appropriate ways) and which members of the workforce have completed the training.
If you require any specific advice in relation to coronavirus, PPE or any related health and safety issue in a care sector, you can contact the rradar legal team by emailing Matthew.Coles@rradar.com.
This article is for guidance only, no action should be taken without first obtaining legal advice.
rradar is a specialist litigation and commercial law firm that uses legal expertise and digital tools to proactively educate, manage, advise and deliver business solutions to reduce legal risk.
rradar’s team of lawyers can provide specialist care sector knowledge and expertise, advising and representing a diverse commercial client base in areas of HR and Employment, Business Crime and Regulation (including Health and Safety and CQC investigations), Commercial Disputes and Corporate and Commercial Law.
This makes rradar a powerful advocate and champion for businesses, allowing them to navigate and evolve in an everchanging environment of regulation, compliance and litigation risk.
For more details please contact Matthew Coles at rradar or McClarrons.