Is the CQC seeking to turn itself into a market shaping regulator? The signs are that it is

The Care Quality Commission is a creature of statute. Its overarching powers, duties and functions are set out in the Health and Social Care Act 2008. That is worth remembering, given the inclination of regulatory bodies to act in ways that have no obvious statutory footing.

A key statutory role allocated to the CQC is that of the “gatekeeper” to the health and social care sector.

A new service that intends to operate a regulated activity can only do so lawfully once it has obtained CQC registration. It is a statutory offence to carry on a regulated activity without registration with the sanction of an unlimited fine and/or, if it involves an individual, a prison sentence of up to 12 months.

Applicants for registration have to satisfy the CQC that they are and will comply with the requirements of the certain regulations issued under the 2008 Act, notably the Fundamental Standards, and any other pieces of legislation which CQC considers to be relevant. The key point is that CQC has to make evidence-based registration decisions judged against statutory requirements, not guidance. Each application has to be judged on its merits using the best available evidence.

In a highly worrying development, the CQC is seeking to make registration decisions in the learning disability and autism sector based on a flawed interpretation of post-Winterbourne View national guidance. The CQC is saying there is a single preferred model of care of care: small in scale (no more than six) in residential settings (in the community) close to where people are from. If a service does not fulfil all or some of these criteria, it may be refused registration by the CQC.

The CQC is acting as though the guidance sets a statutory requirement, which it does not. To the contrary, the guidance only sets out a preferred model of care in the learning disability sector. It allows for exceptions or other models of care that achieve the same outcomes. The guidance also emphasises the importance of choice which the CQC’s flawed policy frustrates.

The CQC is seeking to justify what is an inflexible and unlawful approach by contending it has a wider market shaping role. However, it cannot displace its core statutory registration functions through the adoption of a self-appointed, non-statutory role. It cannot act as though it were a super-commissioner, rather than an inspectorate, making up its own rules as it goes along. That would be unlawful.

The CQC’s stance is impacting on investment in the learning disability and autism sector. It has also frozen new projects in their tracks. There is a real risk that the CQC will become the problem rather than the solution in getting service users out of inpatient facilities into the community, which is the primary intention of the national guidance.

We have challenged the CQC on its approach. It has now committed itself to consulting on revisions to its policy statement – Registering the Right Support – which was published in February 2016 without consultation. The consultation document is to be published around 19 December, allowing for an eight-week consultation period with the CQC’s response forthcoming in March next year.

It is hoped that the CQC will accept that it should make registration decisions based on facts and evidence judged against statutory requirements rather than according to a one size fits all diktat derived from a flawed interpretation of national guidance. If it fails to do so, not only will legal challenges be inevitable but the CQC will be letting down the 2,500+ service users in inpatient treatments who are waiting to be discharged to planned high quality, community services.