The NHS's new inspection response framework gives GPs clarity

NHS England published an important document, Framework for Responding to CQC Inspections of GP Practices, on 20 October which sets out both the regulatory and contractual issues that may arise following Care Quality Commission inspections of GP practices.

It embodies the new special measures regime but also adds important details about how the CQC, clinical commissioning groups and NHS England will work together in the oversight of GP practices.

It should be essential reading for all GP providers. 

A number of points arise.

• How providers should deal with scrutiny and balance service demands
• New CQC standards mean more prosecutions

Regulatory issues

The CQC, NHS England (and its area teams) and CCGs will be working collaboratively before, during and after CQC inspections. They will have agreed information data sets and regular meetings before and after inspections. Those practices that give rise to particular concerns are likely to be escalated for discussion at local and regional quality surveillance groups.

Examples of information that will be shared are:

• data on patient experience;
• annual turnover;
• the practice profile;
• quality and outcomes framework data;
• complaints/whistleblower information;
• evidence on contractual compliance;
• CQC intelligent monitoring;
• audits on prescribing data and referral data;
• professional investigations; and
• workforce information and premises information (for example, on infection control.)  

According to the framework, the CQC will alert NHS England area teams within one working day of having a concern.

The CQC will feed back on the GP practice’s rating.

Inspectors will focus on six population groups - older people, people with long term conditions, working age people, families, children and young people, people living in vulnerable circumstances and people with poor mental health.

There is then an aggregated rating for each population group, an aggregated rating for each key question - is the service safe, effective, caring, well led and responsive - and an overall rating for the practice.

Practices rated “inadequate” for one or more question or population group will normally be given six months by the CQC to improve before being put into special measures. Practices will need to work with area teams on developing an improvement plan to show the actions taken to address issues.

Following a second inspection, the practice will either satisfy the commission that there has been a sufficient improvement or will be placed into special measures for a maximum of six months. This is the practice’s last chance before the CQC moves to cancel their registration.

In some cases, practices will be placed straight into special measures.

‘Practices will need to work with area teams to develop an improvement plan’

This will arise where the concerns are judged to be so significant that patients are at risk or there is no confidence in the practice’s ability to improve on its own. Normally, such a practice will have been judged as inadequate for the well led domain, as well as one of the other five domains or population groups.  

Improvement plans should be “co-developed” between the area team, CCG and the practice.

The Royal College of GPs is offering expert peer advice for GPs entering special measures.

NHS England is providing up to £5,000 of funding directly to the RCGPs for each practice entering the programme, if the practice matches 1:1. The practice also needs to sign an agreement confirming they agree to be co-operative and will pay the fee in advance.

If the CQC decides to use its urgent powers to cancel registration, the application must be made by applying to a justice of the peace for a court order.

Individual doctors can be the subject of referral to the GMC and/or NHS England’s Performers List regime, depending on the circumstances.

Patients should be kept up to date about ratings or when a practice is placed in special measures.

The DH is consulting on whether to require providers to display ratings on their website and within their premises. Other measures to notify patients might include holding direct meetings with patients or via notices from HealthWatch.

Contractual issues

For area teams, upon receiving details of concerns from the CQC, a risk assessment should be done to determine if a contractual management visit is necessary. Either no contractual action will be taken, remedial/breach notices will be served, or the contract will be terminated.

In the case of breach notices, these must stipulate the action that the practice needs to take to remedy the breach. Sometimes a contract will require more immediate action than the CQC requires. The fact that the commission is taking action will not necessarily be enough to justify terminating the contract.

Area team investigations will normally need to happen before NHS England has a right to take contractual action itself.

‘The fact that the commission is taking action won’t necessarily justify terminating a contract’

The level of investigation will be either minor, moderate or major. The guidance says: “Area team contracting teams should not wait for this full [CQC] report before assessing the risks and taking any necessary contractual action.”

Finally, providers should engage with the area team in circumstances where they are aware that they are likely to have their registration suspended or cancelled “in order to ensure continuity of services”.

Subcontractors must be registered appropriately with the CQC before they can carry out services.

Alternatively, the area team may decide to contract with a “parachute provider” for the period of any suspension. Area teams are responsible for the dispersal of patient lists if the registration is terminated.

Coordinated action

What is clear from this framework document is that coordinated action will be taken by the CQC, CCGs and NHS England in relation to the oversight of GP practices. Contractual action might occur before a practice has even received its draft CQC inspection report.

If NHS England decides to carry out an investigation it should give sufficient notice to the practice of a decision to visit the practice. It is likely that there will be requests for further information.  

‘It will be critical for practices to act early if subject to investigation’

Major level investigations will lead to a full practice audit and may involve the taking of witness statements from practice staff and patients subject to their agreement.

It will be critical for practices to act early if subject to formal investigation under its NHS contract and/or regulatory action. In such circumstances, NHS England and the CQC will take legal advice, and it is imperative that GP practices subject to such action also obtain legal advice from a specialist firm of lawyers without delay.

Please feel free to contact us at Ridouts. We are specialist regulatory lawyers and would be happy to discuss any CQC and contractual issues affecting your practice.

Neil Grant is a partner of Ridouts and Joanna Dirmikis, is a barrister for the firm