CQC has produced guidance which provides an overview of how CQC uses warning notices under its improvement and enforcement procedures.
CQC uses warning notices as a tool to promote and drive compliance with the Health and Social Care Act 2008 and improve outcomes for people who use services.
CQC can issue warning notices where a provider’s quality of care falls below the requirements in the essential standards of quality and safety. A warning notice warns the registered person that they have not been, or are not, compliant with the Act or a regulation. Where the failure to comply is continuing, the warning notice will indicate what the registered person must do to comply, together with a timescale for this action to be taken.
CQC must serve a warning notice before it can prosecute for certain offences under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010.
When using warning notices, CQC states that it will focus on the outcomes for people using the service and state the changes that are needed to ensure that people experience care that meets the essential standards of quality and safety.
CQC can serve warning notices when:
- Regulations have not been complied with.
- A section of the Health and Social Care Act 2008 has not been complied with.
- A ‘relevant enactment’ (another Act with requirements relevant to the essential standards) has not been complied with.
- CQC can serve warning notices for offences that:
a) have occurred in the past or
b) are continuing to occur.
CQC must issue warning notices in writing. If a warning notice is being served in relation to continuing failure to comply with a requirement of the Health and Social Care Act 2008, it must include:
- The regulation or section of the Act that the registered person is not complying with.
- How they did not comply or are continuing not to comply with the requirement.
- A timescale for achieving compliance if the breach is continuing.
- A warning that CQC may take further action if the registered person does not comply with the notice, and the breach is continuing.
CQC can only caution or prosecute a registered person in relation to some regulations in the Health and Social Care Act 2008 if it has served a warning notice with a timescale for compliance, and the registered person is still failing to comply the timescale has expired.
Regulations where failure to comply is an offence and may lead to a warning notice being served
The registered person can make representations to CQC about warning notices, but there is no appeal procedure to the independent tribunal.
The registered person must inform CQC when they have complied with a warning notice that includes a requirement to take action and a timescale.
What does CQC do if requirements in a warning notice are not complied with?
CQC states that it will take the most appropriate action. This can include:
- prosecution.
- taking action to change conditions of registration.
- taking action to cancel a registration.
Providers should also be aware that CQC has a memorandum of understanding with GDC and that CQC will work with GDC and will share information.
Representations process for warning notices
CQC states that it has been trialling the introduction of a representations period so that CQC can publicise when it issues warning notices. CQC is planning to implement this for all providers from 1 July 2011.
This means that CQC will issue a warning notice that sets out its concerns and the timescales by which the provider must comply.
Once the provider receives the warning notice, they will then have five working days to make written representations to CQC about publication of the notice.
If the representations are not upheld, CQC will then make public the fact that it has issued the notice in a press release and in the relevant review of compliance report.
CQC has indicated that it will be publishing guidance for providers on how to make representations over these notices as the process is different to other types of enforcement action. This guidance is not yet available.