Samantha Guest, Ridouts registered foreign lawyer – New Zealand, offers advice on how to address a Warning Notice

While the increased CQC scrutiny during a period of inspection can be stressful for a provider, the receipt of the draft inspection report is often equally challenging. This challenge is twofold when receipt of the draft inspection report is accompanied, or closely followed, by a Warning Notice. At Ridouts, we have seen an increase in the issuing of Warning Notices and seek to urge providers to not become overwhelmed with this additional measure of CQC scrutiny.

What is a Warning Notice?

Warning Notices are issued by the CQC where a service is deemed to have failed, or is continuing to fail, to comply with a legal requirement. The CQC can issue a Warning Notice for an alleged current breach of regulation or for a past breach, which may have been rectified, if it considers that the past breach is serious enough. The CQC’s decision to issue a Warning Notice can be classed as ‘low level enforcement’ action and, if overlooked by a provider, may escalate to a form of enforcement action with wide reaching commercial consequences – for example, a Notice of Proposal seeking cancellation of a provider’s registration.

A Warning Notice must be issued in writing and must state:

• The relevant legal requirements that the registered provider is not complying with

• How the registered provider did not comply

• The timescale within which the CQC expects the registered person to become compliant.

There is no legally-set timeframe for complying with a Warning Notice and the CQC can set any compliance period which it considers reasonable. Be wary that the timeframe for complying with the Warning Notice (demonstrating compliance with the alleged regulatory breach) and the deadline to submit representations to the Warning Notice (your arguments for why the Warning Notice should not have been issued and/ or published) are two separate things and often fall on different dates.

What is the effect of a Warning Notice?

The content of a Warning Notice is often published, and widely distributed amongst stakeholders, by the CQC. The publication, or sharing of information, can lead to unwanted attention from relevant stakeholders, such as the local authority, other regulatory bodies, service users and relatives. While providers are often aware of the damage that an inaccurate inspection report can have on its service, there is a lack of understanding that the same impact may also be obtained through the publishing of a Warning Notice.

Warning Notices do not undertake a ‘rating’ exercise and therefore may be considered as less outwardly harmful. Despite this, a provider should not forget that a Warning Notice is a form of enforcement action which tells the reader that a service is failing to comply with its legal obligations and, as a result, is putting its service users at increased risk.

How do you respond to a Warning Notice?

The unfortunate side effect of the CQC issuing Warning Notices alongside a draft inspection report is that the timeframe to respond to both documents is the same, namely ten working days. This is despite the nature of the responses to a draft inspection report and Warning Notices being distinctly different. Warning Notice representations are not as restrictive as factual accuracy comments and may cover: serious errors, factual inaccuracy, failure to meet the legal test, proportionately and whether there is sufficient public interest in publication. This allows the provider to comment on the most ‘up to date’ position of the service with emphasis on the steps that have been taken and/or are being taken to address the CQC’s perceived errors.

At Ridouts, we are well-versed at preparing representations which robustly address all arguments available to the provider. The desired outcome to these representations is that the CQC conclude that its issuing of the Warning Notice was erroneous and should be withdrawn or, at the very least, that it should not be published. If this is not achieved, the representations present the provider with a valuable opportunity to ensure its voice is on record. This is not an opportunity which should be dismissed.

Further, the increase in issuing a Warning Notice alongside the draft inspection report is fundamentally flawed as the CQC solely rely on the documents reviewed, processes witnessed and information received over its period of inspection. This information is normally being contested by way of factual accuracy comments meaning the CQC may have relied on potentially inaccurate, misconstrued or untested information to support its issuing of the Warning Notice.

The tight timeframes and the nature of the response can be overwhelming but we seek to empower a provider to utilise its right of response to challenge the CQC and put its position on record. If you are a provider who is currently facing these concerns and is seeking advice or assistance in preparing a response, please contact Ridouts Professional Services.