Laura Hannah 1
Professional Comment

Wider Issues Around Registration for CQC Regulated Bodies Following Case of Convicted 82-yr-old Able to Register as Care Home Manager

Laura-Hannah-1By Laura Hannah, associate solicitor at national law firm Stephensons

It was recently reported that an 82-year-old woman was permitted to register as a manager of a 25 bed care home for elderly residents by the Care Quality Commission (‘CQC’) in 2010, despite the CQC’s knowledge of her previous conviction for which she received a jail sentence in 2003 after deceiving a client of £9,000 in her previous role as a ‘financial advisor’. It is reported that it was only a matter of years after leaving prison that she was appointed as a manager of a care home, where she had obtained employment as a carer following the completion of her sentence. This role involved her caring for residents with dementia. In 2014, she moved to a different home where she again successfully registered as manager with the CQC, who were subsequently contacted by a whistle blower earlier this year to question the appropriateness of her registration in light of her previous conviction.

The CQC is the independent regulator for adult social care services in England and its purpose, as stated on its website, is to “make sure health and social care services provide people with safe, effective, compassionate, high-quality care”. The CQC is responsible for the registration, monitoring and inspection of any persons or services registered to carry on regulated activities.

The Application Process
Before an application can even be submitted to the CQC, the person applying must obtain a CQC countersigned DBS as the disclosure number is required for submission. This is to check that the person applying is not barred from working with children or vulnerable adults. Where a company is applying to be registered as provider, a CQC DBS check will need to be undertaken for all directors. Whilst a Nominated Individual does not require a CQC DBS check, providers must carry out their own DBS check and may be required to provide evidence of this during the registration process. It is also important to note that any DBS certificate received must not be over 12 months old at the time the application is submitted and validated. In our experience, these applications will be returned immediately to the applicant and will not be reconsidered until a new, up-to-date DBS is obtained. In some cases, this can often delay an application as it can take a number of weeks before a DBS is received. For new providers, this means that they are prevented from carrying out regulated activities for a longer period and for managers, it could potentially affect any job offer received.

It is not uncommon for applications for registration to be returned by the CQC a number of times during their initial checks, usually due to minor errors with the completion of the relevant forms. A common error is where the provider and manager applications do not match; this can include the regulated activities applied for, the location details or even incomplete provider details.

Within an application, an applicant must provide full details of their employment history, as well as contact details for their GP and a professional referee, preferably from their most recent employer. The applicant must also make a declaration that they are medically fit to carry out their role. It is extremely important that the applicant considers this declaration very carefully as any evidence of dishonesty will be taken seriously by the CQC and will have a significant impact on their registration decision. The key to any application is full disclosure; if there are any factors which an applicant is concerned about, disclosure of those factors at an early stage would place them in the best possible position. Any attempt to conceal these factors is only likely to lead to a negative decision on the registration or lead to cancellation of the registration and/or potential criminal enforcement later down the line. In this recently reported case, the manager had been open and honest to the CQC and her employer throughout the entire registration process and the CQC were therefore already aware of her previous conviction at the time the whistleblowing complaint was made earlier this year.

Registered Manager – what is the criteria?
When determining whether a person is suitable to be registered as a manager, the CQC must consider whether the person applying is fit to be registered in accordance with Regulation 7 of the 2014 Regulations. More specifically, Regulation 7 sets out that a person is not fit to manage any regulated activity unless: (1) they are of good character; (2) they have the necessary qualifications, skills and experience to manage the carrying on of the regulated activity; and (3) they are able by reason of their health, after reasonable adjustments are made, of doing so. The purpose of this is to ensure that service users’ needs are met; this is done by ensuring that the regulated activities are managed by a suitable person.

What defines ‘good character’?
Whilst it may not be possible to establish all of a person’s character traits, a registered provider is responsible for compiling all relevant and accessible information to assess whether a manager is of ‘good character’. A robust process should be followed to take into account their honesty, trustworthiness, reliability and respectfulness. This includes a consideration of the matters outlined in Schedule 4, Part 2 of the 2014 Regulations, namely whether the manager has been convicted of any offence, or whether they have been erased, removed or struck-off a health and social care regulator’s professional register such as that of the NMC, GMC or HCPC.

Any matters which arise from this process should be fully investigated and any appropriate action taken. If this results in the manager retaining their position, the provider should ensure that the reasons for this decision are noted in full and in some circumstances, a provider may consider that a risk assessment may be appropriate.

In this recent case, the CQC reportedly advised the whistblower that: “Individuals with a criminal conviction such as theft from an elderly person should be on the barring list as held by the Disclosure & Barring Service. We would like an opportunity to investigate this further.” However, it is reported that shortly after, the CQC stated that it was satisfied that it had carried out a detailed and rigorous investigation into the circumstances of her conviction and furthermore, that she had been open and honest with both the CQC and her employer. The CQC also stated that it had sought legal advice before proceeding with this registration decision.

Some may argue that this decision was arbitrary and goes against the core aim of the CQC as an independent regulator, namely to protect and promote the well-being of vulnerable members of society. This case, in fact, makes it clear that a conviction is not an absolute bar to a person obtaining registration with the CQC and being deemed fit to manage any regulated activities.
Necessary qualifications, skills and experience…

When assessing a person’s skills, qualifications and experience, the CQC look into whether the proposed manager has a full and adequate understanding of the requirements of the associated legislation, particularly the Health and Social Care Act 2008; the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 [‘2014 Regulations’]; and the Care Quality Commission (Registration) Regulations 2009.

Whilst the CQC’s Andrea Sutcliffe states that around 37 applications are rejected each month, these are not necessarily attributed solely to a person failing the good character assessment. When assessing a person’s skills and experience, the CQC will also look at a person’s previous management record and the inspection history of those services they managed, including the current service they are applying for.

Whilst we do not have access to the CQC’s internal thought processes and investigations, what is clear is that the CQC’s registrations are now much more stringent than they were in 2010, shortly after the CQC was established. In any event, if anything, this case demonstrates the importance of being open and honest with the CQC during the registration process, as well as any employer, where there are any circumstances which could potentially result in the refusal of a registration. Being upfront with the regulator and working collaboratively with them, providing any information pertinent to an application, is only likely to increase your chances of obtaining registration.