CQC's 'hands are tied' on enforcement action

Speaking at the regulator’s board meeting last week non-executive director Martin Marshall – also a GP and expert in quality improvement – said it did not in practice have a “portfolio” of enforcement actions but just one. That is to issue warning notices.

He said: “The reality is the law ties our hands in terms of what we can do.”

The CQC has powers to take more dramatic action – most dramatically to prosecute trusts or suspend or cancel their registrations – but it rarely does so.

The meeting was told that during 2011-12, 638 warning notices were issued, with the largest number, 252, in the final quarter of the year. The six other enforcement actions the CQC has available were used only 88 times in total during the year. The second most commonly used is to issue a “notice of proposal” to cancel or vary the terms of a provider’s registration. The regulator has only ever carried out one prosecution.

The board meeting heard that suspending or cancelling registrations was difficult for two reasons. Firstly because the CQC must have regard to the ability of other services locally to cope with the extra demand caused by the closure of a service, and secondly because the CQC cannot deregister only one location for an NHS provider, but must remove registration for all services.

A report to the board highlighted the example of maternity services at Barking, Havering and Redbridge University Hospitals Trust. They were previously found to be “very poor”. But, the report said, the CQC was “hindered” from changing the registration to stop the service, because there was no local capacity to meet needs of pregnant women.

The meeting heard the CQC had put forward a number of recommendations to vary its powers but these had been rejected.

Following the meeting, Professor Marshall told HSJ use of the CQC’s “more radical” enforcement powers such as deregistration was often an “unrealistic option”, as it would cause “intolerable pressure on other parts of the local healthcare system”.

He said the CQC’s on-going strategic review would consider how it could work with the wider healthcare system to use its powers to drive improvement in NHS trusts that have a history of non-compliance.

In the first quarter of 2012-13 there were 22 NHS organisations which had been failing to comply with CQC requirements for more than a year.

Professor Marshall said: “Also, we need to consider whether warning notices are always the most effective way of driving improvement in NHS locations with deep-seated systemic problems, as our experience is that a small number of provider organisations fail to respond in a substantive and sustained way to these notices.”