Maddi Gaunt, Solicitor, Ridouts
Whilst long standing calls for significant sector reform appear to be gaining more traction, reform is likely to be some way off but providers will still have new legal and regulatory challenges to navigate in the shorter term.
Increased and Changing Regulatory Activity
The CQC is now entering a “Transitional Phase” of regulatory activity. Whilst the details of this have yet to be ironed out, providers are likely to see a significant shift in the way the regulator operates in the coming months.
We are seeing sudden shifts in the focus of activity. In recent weeks, for example, we have seen a significant increase in threats of urgent enforcement action from the CQC which, if enacted, could result in lost businesses. Thorough and timely responses have seen fears allayed and the impact on providers minimised.
Providers will want to be in a position to take a firm stance if the regulators get it wrong.
To some degree, the immediate Covid-19 response was a knee-jerk reaction on all fronts and we hope providers actions are considered in that light. However, as Covid-19 becomes part of the “new normal”, providers can expect increased scrutiny from a number of relevant stakeholders, both in respect of what they have done to date, and what they plan to do going forwards.
Whilst IPC will remain important, providers would be advised to ensure that they give sufficient attention to other regulatory requirements and document decision making.
Providers must keep on top of developments; the CQC’s latest hot topic being fire safety.
Whilst inquests have been largely on hold during the pandemic, coroners are now under pressure to clear the backlog of adjourned inquests, and we can expect a rise in the number of inquests being opened in due course.
The inquest process can open up a number of legal issues for providers and we are seeing particularly vocal family members actively engaged. Providers must be aware of the potential pitfalls
We are already seeing an increase in people reporting complaints to providers, or to the CQC. Whether these complaints have merit or not is largely irrelevant. They need to be well documented and dealt with carefully and properly, not least because bad complaints handling can result in much more severe outcomes.
Much of the sector will be reviewing finances and financial viability as an ongoing matter.
Given the significant financial pressures Covid-19 has brought to the sector, providers may need to renegotiate fee rates which are no longer sustainable and may encounter resistance in doing so. Additionally, many organisations and individuals may seek to claim against providers for financial remedies. These could take many forms and could, for example, come from residents, family members or other parties to contracts, or staff members.
Providers will need to be prepared to handle, and present their cases (or defence) in a robust way.
So, what can you do?
Ultimately, the whole social care sector has been doing a sterling job through Covid-19, despite a woeful lack of coordinated support from the government.
What comes next is likely to be a period of further change, uncertainty and transition.
To put themselves in the best possible position, providers should take stock of their services and, where possible, pre-empt issues arising.
Well informed and well prepared providers can take what may seem very small steps to minimise the risk of legal and regulatory problems which can have huge commercial and financial implications. Early legal advice on a minor issue can often stop it escalating into something much bigger, particularly where the legal and regulatory landscape is so uncertain.
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