The Care Quality Commission (CQC) have a wide range of civil and criminal enforcement powers, which are outlined within the CQC’s enforcement policy. The CQC can utilise these powers against registered providers and managers within the health and adult social care sectors who are in breach of the fundamental standards, a condition of their registration or any associated legislation.
When do the CQC issue a Warning Notice?
One of the CQC’s civil enforcement powers includes the ability to issue a registered provider or manager with a Warning Notice where they have failed to comply with the relevant legal requirements. This includes a breach of the Health and Social Care Act 2008 [‘the 2008 Act’], the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 [‘2014 Regulations’] or other associated legislation.
Warning Notices are often issued by the CQC alongside a draft assessment report following an assessment of a service. One Warning Notice will usually be issued per breach so it is often the case that providers receive multiple Warning Notices following an assessment if multiple serious breaches have been identified.
Each Warning Notice will set out the relevant regulation, act or condition and the reasons why the provider is failing to comply with that legal requirement. It will also provide a timescale in which the provider is expected to become compliant and whilst there is no specified legal timescale, this is determined by the degree of risk. In our experience, this often ranges from a few weeks to months.
A further CQC assessment will often take place after this period and/or the CQC can make a request for further information or evidence of compliance from the provider or a third party. However, it is always advisable for a provider to notify the CQC of their compliance as soon as they have addressed any concerns and provide any supporting evidence to demonstrate this compliance as soon as possible and in advance of the end of the period specified within the notice where appropriate.
Whilst a Warning Notice may be considered as just ‘a warning’, if it is not dealt with correctly in a timely and robust manner and a provider is still found to be in breach of the relevant legal requirement, the CQC may consider taking further or more serious enforcement action later on, such as the imposition of conditions, the cancellation of the registration or even a prosecution. Providers should therefore never underestimate a warning.
Can you prevent the publication of a CQC Warning Notice?
The CQC is not required to publish any information about any Warning Notice that has been issued, however, it will usually include reference to the fact that a Warning Notice has been served within an assessment report and can also publish a summary more widely, including a press release, unless there is a good reason not to. The Warning Notice will also usually be sent to other relevant bodies, which can cause reputational damage and potentially affect vital funding or contracts. However, the full contents of the Warning Notice is not published, only a summary of the key points.
It is often not possible to withhold the publication of a Warning Notice unless there are exceptional circumstances or any representations made against it are upheld, as outlined below.
How do I challenge a CQC Warning Notice?
There is no right of appeal against a Warning Notice but providers are given a period of ten working days from service of the notice to make representations.
Representations can be made against a Warning Notice if it has been wrongly served based on one or more of the following grounds:
- It contains an error;
- It is based on inaccurate facts;
- It should not have been served, or is an unreasonable response to the situation it describes; or
- For any other reason, the Notice should not be more widely published.
Providers are also able to include any reasons why it would be unfair to publish the Warning Notice within their representations. However, it is important to note that any financial or other adverse effects on a service are not usually considered a sufficient reason to withhold publication.
It is vital that providers challenge a Warning Notice where there are sufficiently robust grounds for doing so, and any representations are supported by clear documentary evidence. If no representations are made, the CQC will have nothing further to consider and they will proceed with publishing information about the Warning Notice. In those circumstances, there is a presumption that a provider accepts the findings outlined within the Warning Notice, which may prejudice a provider's position later down the line if they find themselves trying to challenge or appeal future escalated enforcement action or alleged continued breaches.
However, where robust submissions are made to challenge the reasons outlined within the Warning Notice with supporting documentation, a provider increases their chances of having the Warning Notice withdrawn. In any event, a provider’s disputes are put on record and can be relied on if required in the future.
Whilst there is no set timescale for the CQC to respond to any representations, the CQC’s website confirms that the National Representations Team aim to do so within 20 working days.
Challenging a CQC draft assessment report is also an important step, particularly as the findings and judgments outlined within that report will likely be the basis for the CQC’s decision to issue a Warning Notice. As such, achieving success in a factual accuracy challenge against a CQC draft assessment report can sometime impact the CQC’s decision on whether to withdraw a Warning Notice, and/or publish it.
To find out more about how you can challenge a CQC assessment report, you can view our recent blog here: ‘How can I challenge a new CQC assessment report or rating?’
Case study – July 2024
Our specialist CQC solicitors recently represented a registered provider who had received a comprehensive assessment of their service by the CQC, which resulted in an overall rating of ‘requires improvement’. During that assessment, the CQC alleged to have found multiple new and continuing breaches of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 [‘2014 Regulations’].
Alongside their draft assessment report, the CQC issued the provider with two Warning Notices; one for a breach of Regulation 12 (safe care and treatment) and the other for a breach for Regulation 17 (good governance) of the 2014 Regulations. The CQC alleged that these breaches were continued from their previous assessment of the service.
In relation to the breach of Regulation 12 (safe care and treatment), the CQC alleged that the service was failing to ensure service users were protected from the risk of receiving unsafe care and support, as risks to service users had not always been identified and where these were identified, the provider had not always ensured appropriate measures were in place to fully mitigate the risks. In respect of Regulation 17 (good governance), the CQC also alleged that the provider had failed to effectively operate systems and processes for monitoring, assessing and improving the quality of the service.
Our specialist lawyers submitted detailed representations to the CQC against both Warning Notices, detailing a number of errors and inaccuracies contained within the notice and why the quality of evidence relied upon by the CQC was not robust or reliable. These representations were also supported by extensive documentary evidence.
After considering these representations and supporting documents, the CQC upheld our representations and withdrew both Warning Notices, confirming that the Warning Notices would not be published.
Client testimonial
"Stephensons assisted myself with a represent against a warning notice for failure to adhere to regulations. Our appointed solicitor Cameron was excellent from the word go, doing his due diligence into the allegations against us and following our instructions to draft a well structured bullet-proof case. All waning notices were dropped and I'm delighted with the outcome."
Contact us
If you have received a CQC draft assessment report or Warning Notice, our specialist CQC lawyers can assist you with compiling robust and detailed representations to the CQC to place you in the best possible position. For a confidential discussion with one of our specialist CQC lawyers, please contact us on 0161 696 6250 or complete our online enquiry form.
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