Samantha Burges, senior associate at Ridouts, says the CQC needs to properly consider the level of risk alongside the impact of its decisions to ensure its actions are necessary and proportionate before taking urgent enforcement action

A recent Tribunal case has shed further light on the courts approach when considering the enforceability of the CQC’s urgent enforcement powers under Section 31 of the Health and Social Care Act 2008 (the Act). This article covers 3 key points arising from the case of Specialist Medical Transport Limited v Care Quality Commission (the SMT case).

Section 31

Section 31 of the Act gives the CQC the power to urgently suspend a provider’s registration or to urgently vary or remove certain conditions of registration. This is at the highest end of its enforcement powers and, if taken, the urgent action applies immediately.

Providers have the right to appeal the CQC’s decisions within 28 days of the date the decision was served. Section 31 appeals are submitted to the First-tier Tribunal and follow an expedited appeals process. This helps ensure a final decision is made promptly to minimise the impact on the provider’s livelihood and on service users and their relatives.

Level of harm

The legal test for taking urgent action under Section 31 is if the CQC has reasonable cause to believe that unless it takes action any person will or may be exposed to the risk of harm. This may appear to be a fairly low bar, but in the SMT case the Tribunal confirmed that the word ‘significant’ should be read into the legislation in relation to the level of harm to meet the requirement of proportionality.

While ‘harm’ is not defined under the Act, it is taken by the courts to embrace harm to health, safety and welfare of service users and can include both physical or psychological harm. The specific circumstances of a situation must be considered when determining the level of harm and blanket assumptions will not be accepted by the courts without sufficient justification. For example, the fact that a service user who is a known self-harmer manages to get a ligature around their neck does not automatically mean the provider placed them at a significant risk of harm. Such a blanket conclusion would imply that any ligature incident is always avoidable and doesn’t take into account the complexities of service users with mental health issues. Ligature incidents can and do occur despite risk assessments and the provision of appropriate care therefore there needs to be a wider consideration of the specific circumstances surrounding an incident.

In the SMT case the Tribunal also considered when significant harm may be foreseen to occur. The Tribunal referred to previous case law to determine that the significant risk service users will or may suffer must be considered to occur within the timescale that would otherwise be required under the ordinary enforcement procedures provided for under the Act. This includes considering the vulnerability of service users, the seriousness of shortcomings and the time it would take for a provider to put them right.

Another factor that can be considered when weighing and assessing the issue of risk and proportionality is the presence or absence of any demonstrable past harm. Evidence of past harm could swing the decision in favour of urgent action.

Observations of care

The observation of care forms one of the CQC’s on-site inspection activities. This is of particular importance for individuals who may not be able to speak for themselves (for example, mental health patients or those with learning difficulties or dementia).

In the SMT case the CQC had said it did not directly observe how the service performed in terms of care due to it not being realistic (it was inspecting a private ambulance service) and patient confidentiality. The CQC instead relied on discussions with staff to inform its judgment.

The Tribunal stressed that in situations where written feedback can be difficult to obtain from a particular group of patients, observation of the delivery of care may well be informative and could reasonably be achieved without undue intrusion regarding patient confidentiality. It was acknowledged that this would require planning with more inspectors and/or specialist advisors or a longer inspection timeframe.

Considering the CQC’s limited resources, it isn‘t surprising that it didn’t take such additional steps to assure itself of service quality. However, the Tribunal case clearly demonstrates that if the CQC is relying on findings to take the highest level of enforcement action available it should be taking sufficient steps to ensure itself of its evidence base.

Impact of enforcement action

The Tribunal confirmed the CQC must have regard to the potential impact of enforcement action not only on service users but also on the provider’s business and its employees. While this may seem obvious to most, many decisions issued by the CQC do not mention such considerations and solely focus on risks to service users.

In the SMT case the Tribunal decided in favour of the provider, allowing the appeal, resulting in the urgent enforcement action being lifted. The decision is a stark reminder to the CQC that it needs to properly consider the level of risk alongside the impact of its decisions to ensure its actions are necessary and proportionate before taking urgent enforcement action.