Dear Care Quality Commission,
On 07-07-2015 I emailed [email address] as advise todo on Twitter. I have not yet had a response. So now am asking in a public forum.
I ask the following under freedom of information.
"The service had not always sent us the required statutory notices in relation to Deprivation of Liberty (DoLS) applications and authorisations. We could not be certain that the service had consistently met legal requirements in relation to DoLS."
"The service met the legal requirements of the Mental Capacity Act 2005. When people were assessed as not having the mental capacity to make a decision, a “best interests” decision was made. The service had appropriately made Deprivation of Liberty Safeguards (DoLS) applications to the local authority."
These to statements and very contradictory please clarify Under who's authority can the CQC "ignore" legal requirements ?
"The service is required to have a registered manager. A registered manager is a person who has registered with the Care Quality Commission to manage the service. Like registered providers, they are ‘registered persons’. Registered persons have legal responsibility for meeting the requirements in the Health and Social Care Act 2008 and associated Regulations about how the service is run.
The registered manager has been absent from the service since October 2014.The provider had made arrangements for the service to have an interim manager. The service was not always well-led."
How can a service that is not well led pass CQC inspection? What aspects where not well led? Under who's authority can the CQC "ignore" legal requirements ?
"We found that a number of staff did not have current Disclosure and Barring Service (DBS) checks. We also found that incidents were not escalated or documented immediately."
How can CQC be sure of the staff when DBS checks are incomplete ? Failure to process these checks could potentially put a vulnerable patient in the care of someone unsuitable. Would CQC accept responsibility for allowing inaccurate DBS checks?
Would failure to document an incident not amount to goss miss conduct? How can patients records be relied on if there is a possibility of wrong Or incomplete information being present.
Dear Mr McMorrow
I write in response to your query of 7 July 2015 in relation to the 2
February 2015 inspection report on Heathside Neurodisability Unit and to
the 10 April 2015 inspection report on the Thames Brain Injury Unit. As
your questions are not requests for recorded information, but asking for
explanations as to CQC’s actions, we are responding to this as business as
usual, rather than under FOI.
Heathside Neurodisability Unit
You quote two statements from the report in relation to the Mental
Capacity Act and Deprivation of Liberty Safeguards (DoLs). You were
concerned that the report was contradictory.
Your first quote is, "The service had not always sent us the required
statutory notices in relation to Deprivation of Liberty (DoLS)
applications and authorisations. We could not be certain that the service
had consistently met legal requirements in relation to DoLS." This means
that the service had not sent us the required notifications over a period
of time. We could not be certain that they had always met the DoLS
requirements in the months preceding the inspection.
Your second quote is, "The service met the legal requirements of the
Mental Capacity Act 2005. When people were assessed as not having the
mental capacity to make a decision, a “best interests” decision was made.
The service had appropriately made Deprivation of Liberty Safeguards
(DoLS) applications to the local authority." This refers to the situation
we found on the day of the inspection. It is therefore not contradictory
with the above quote which is in reference to the months preceding the
inspection and therefore CQC does not consider that we have ignored legal
With regard to your quote, “The registered manager has been absent from
the service since October 2014.The provider had made arrangements for the
service to have an interim manager. The service was not always well-led."
You have asked, “How can a service that is not well led pass CQC
inspection? What aspects where not well led?” There is a detailed
explanation of how the service is not well-led is given at page 10 0f the
report, “The service had not always sent the CQC notifications in relation
to the outcome of Deprivation of Liberty (DoLS) applications. We could not
therefore be certain that the service had always met legal requirements in
relation to DoLS. This was a breach of CQC (Registration) Regulations 2009
Regulation 18 (4a and 4b).
The provider made checks on the quality of the service. The provider had
conducted a detailed audit of medicines management procedures in October
2014. The audit checked practice in the service against current guidance
for the management of medicines in an adult social care setting.
Consequently, the provider had identified a number of improvement actions
in relation to the management of medicines. No timescales had been set for
their implementation. At the time of the inspection, not all of the
actions had been completed. For example, one of the uncompleted audit
actions related to ‘PRN Protocols.’ The audit report stated, “There do not
seem to be any PRN protocols in place. Could these be completed by the
named nurse?” A ‘PRN protocol’ explains how a person should receive
medicines prescribed for conditions such as pain or anxiety which are to
be taken only when the person needs it. It was important staff had
guidelines in place about how to manage these medicines as some people in
the service could not ask staff for these medicines when they need them
due to their communication needs.
The interim manager told us the aim was to have all the actions completed
within the next few days, as the service was due to be re-audited. Whilst
these PRN protocols were not in place we could not be certain that people
in the service had always received their PRN medicines safely as
prescribed. Identified areas for improvement were not addressed in a
timely way. People were at risk of receiving inappropriate care and
support. This was a breach of Regulation 10 of the Health and Social Care
Act 2008 (Regulated Activities) Regulations 2010.”
In relation to CQC actions, page 11 of the report explains the regulations
which were not being met and that we have asked the provider to send us a
report to say what action they are going to take. We did not take formal
enforcement action at this stage. We will check that this action is taken
by the provider. Therefore CQC does not consider that we have ignored
Thames Brain Injury Unit
In relation to the second part of your request we have answered your
questions relating to the staffing requirements laid down in the Health
and Social Care Act 2008 and associated regulations.
“How can CQC be sure of the staff when DBS checks are incomplete ? Would
CQC accept responsibility for allowing inaccurate DBS checks?”
The responsibility for recruiting suitable staff and carrying out required
pre-employment checks rests with registered providers. It is for them to
provide assurance to themselves, CQC and any other stakeholders that the
staff they employ are suitable, appropriately qualified, skilled, and
CQC is not responsible when providers carry out incomplete DBS checks, but
will take appropriate action if we find any breaches of regulations 18 and
19 of the Health and Social Care Act 2008 (Regulated Activities)
Regulations 2014. These regulations make specific legal requirements on
providers in relation to criminal records checks.
“Would failure to document an incident not amount to gross misconduct?”
Regulation 17 of the Health and Social Care Act 2008 (Regulated
Activities) Regulations 2014 requires providers to ‘maintain securely an
accurate, complete and contemporaneous record in respect of each service
user, including a record of the care and treatment provided to the service
user and of decisions taken in relation to the care and treatment
provided’. Responsibility for monitoring staff conduct in relation to this
requirement rests with the registered providers. CQC does not prescribe
what acts would amount to gross misconduct, and it is not for CQC to
determine the disciplinary measures a provider should take.
“How can patients records be relied on if there is a possibility of wrong
information being present?”
CQC’s role is to check the quality and safety of services. Good record
keeping is an essential part of providing a good service. Where we find
that wrong or inadequate information is being recorded, we require the
provider to take the necessary steps to improve.
Further Correspondence of 21 July 2015
In the above correspondence you then asked “I'll change the core question
for FOI then under what law or authority can the CQC ignore legal
This is a request for advice on how the law works and is too general a
question to respond to. CQC takes it’s legal requirements very seriously,
however, in every piece of legislation, certain parts can be disregarded
depending upon other sections being engaged. For example under section 1
of the Freedom of Information Act 2000, public authorities must inform an
applicant whether it holds information and provide it to the applicant.
However, certain sections (i.e. 12, 14 and 21-44) do not oblige the public
authority to comply with section 1 where certain conditions apply.
This is the way all legislation works and without knowing what specific
“law” you are referring to, you question would be impossible to answer
given that CQC have legal responsibilities under many different pieces of
primary and secondary legislation.
On behalf of
Senior Information Access Officer
Legal Services & Information Rights
Care Quality Commission
Newcastle Upon Tyne, NE1 4PA
Telephone: 0191 233 3587
Fax: 03000 200 240
The Care Quality Commission is the independent regulator of health and
adult social care services in England. www.cqc.org.uk. For general
enquiries, call the National Customer Service Centre (NCSC) on 03000
616161 or email [email address].
Statutory requests for information made under access to information
legislation such as the Data Protection Act 1998 and the Freedom of
Information Act 2000 should be sent to: [CQC request email]
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