Can you challenge the CQC?
Despite increasing pressure being placed on frontline care teams, the Care Quality Commission (CQC) has revealed that GP practices are providing a consistently good quality of care, with 93% rated good or outstanding.
Practices are also significantly more likely to maintain their rating upon reinspection than other NHS providers.
But what if an inspection takes place and you disagree with its findings? What are your options for challenging the ratings given?
CQC inspections
All GP practices are subject to a comprehensive inspection by the CQC at least once every three years. This consists of inspectors collating information externally and then being on site for a day to observe. Further follow up inspections may also be undertaken, if a particular concern has been raised in a previous inspection.
Inspectors assess all practices on the following points:
- Are they safe?
- Are they effective?
- Are they caring?
- Are they responsive to people’s needs?
- Are they well-led?
They also look at how services are delivered to people in specific population groups, such as the elderly, people with long term conditions and those experiencing poor mental health.
‘Evidence’ will be gathered from multiple sources. This may include looking at feedback and complaints, assessing local and national data, speaking to service users and staff, and any insights gained through the onsite inspection. From this evidence, a report and ratings will then be produced.
When can you challenge a CQC report?
Draft report
A draft copy of the report will be sent to the practice and it is as this point that you will be invited to provide feedback on its ‘factual accuracy’.
At first glance, the term factual accuracy may suggest that you can only correct stated facts, such as the number of staff they have recorded. However, in reality this is your chance to challenge all inaccuracies in the report and its findings, including questioning the evidence base and how it has been construed to justify the conclusions drawn.
Time is short. You will only have 10 working days to review the draft report and submit any comments.
Published report
Once a report has been published, you can also ask for a review of the ratings if you feel inspectors did not follow the correct process and procedures. You must tell the CQC of your intention to do this within 5 working days of the report being published.
Drafting your response
While there may be things in the report that you disagree with or feel are unfair, that alone is not enough. Any challenge must be based on specific issues with the evidence and how it has been interpreted, or the process that inspectors have followed.
If you believe a report to be an unfair representation of the level of service you provide, then how you word your response is important.
- Your aim is to describe why the service provided does not justify the rating it has been given, in relation to the Provider Guidance descriptions. It is therefore important that you refer back to the specific items in the Guidance (available on the CQC website).
- Don’t worry about fitting your comments within the boxes provided on the form. It is more important that you lay out your case clearly, so feel free to write on a separate sheet.
- Show you understand the whole process and all guidelines by making reference to The Fundamental Standards, The CQC Provider Guidance and The CQC Enforcement Policy
- Always avoid including any comments that are emotive (‘this is completely unfair’) or just opinion, (‘it’s impossible with the funding we have’). You need to demonstrate how a different opinion could/should have reasonably been reached by looking at the facts more carefully.
Our recommendations
While it is true that many challenges are not upheld, it is by no means uncommon for challenges to succeed. The key is always in the preparation of the supporting documentation.
If you are unhappy, make sure your concerns are submitted within the deadline. This is difficult in itself as the deadlines are so tight.
We’d always recommend that you prepare fully for the inspection itself, and present the strongest evidence you can. Try to gauge at the inspection itself whether there are any concerns, since you will only have 10 days to respond once you receive the draft report and this is very little time to gather any additional evidence. Then, if you are faced with a report and ratings you feel are unfair and inaccurate, ensure you document your response in the right way.
If in doubt, ask for advice as quickly as possible from an experienced legal team, as they will be able to help you prepare your challenge, giving you best the possible chance of it being upheld.
For more information, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Due Diligence – is it worth the effort?
For any major commercial transaction, you need to know exactly what you’re getting into and ensure (as far as is possible) that there aren’t going to be any nasty surprises further down the line.
In the same way that you would call on the services of a surveyor when thinking about buying a house, due diligence when you are merging or acquiring a practice can help you see what’s below the surface and avoid you making a costly mistake.
A GP practice merger or acquisition will typically involve:
- Legal due diligence – which focuses on all legal arrangements associated with a practice; and
- Financial due diligence – which examines the accounts and all financial dealings, usually from the last 3-4 years
For this blog, we are going to focus on legal due diligence.
Who can carry it out?
You may choose to carry out due diligence yourself, or ask your solicitor to deal with it. Using a solicitor has the benefit that everything will be documented in a business transfer agreement, with appropriate legally binding warranties and indemnities.
While certain issues are easy to identify, others are not. An experienced solicitor will know what to ask and recognise potential risks which you will want to know about.
What kind of risks may be identified?
In a GP practice merger or acquisition, the biggest risks will often be associated with:
- property
- the core contract
- staff
- pensions
but there may be others and it is important to undertake suitable investigation and raise enquiries.
Examples of issues you need to be aware of are onerous business contracts, unresolved disputes, and pending or threatened legal actions. Some of these will be documented, but others might not be.
Warranties & Indemnities
If there is any uncertainty, then you have the option to ask for a warranty from the partners, whereby they legally confirm what they have said is true. This may offer some comfort, but you may also want a series of indemnities to protect you from future liabilities crystallising. Just bear in mind that an indemnity is only as good as the financial standing of the person who gives it.
Our recommendations
At the end of the due diligence exercise, you should feel confident that you understand any risks and can make one of three choices: accept the position, mitigate the risks or walk away.
Undertaking a merger or acquisition is a big decision. The benefit of due diligence is that it can help you identify early on where the high-risk areas may be. It isn’t something you have to do, but we would always recommend it.
Fortunately, most practice mergers go through without incident and due diligence doesn’t reveal any problems. However, for those unlucky few where a major problem is highlighted, it will have been time and money well spent. Think of a due diligence exercise as similar to taking out an insurance policy.
For more information, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Is your practice prepared for the changes to IR35?
Significant changes to tax legislation IR35 are likely to come into force from April 2017. These changes have implications for any practice that engages workers, such as locums, through their own companies.
Here’s what you need to know:
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Burnout: 4 legal issues to consider if one of your GP Partners “Burns Out”
Partner burnout is a growing problem for GPs – up to 50 percent are at high risk due to stress, high demands and funding cuts.
If one of your partners is suffering from stress, careful consideration should be given to these four key issues:
- Disability discrimination;
- Professional conduct, including patient safety;
- Partnership obligations as defined in the partnership agreement; and
- Fulfilling one’s obligations under the core medical services contract.
1. Disability discrimination
If stress results in a partner being unable to carry out their work properly on a long term basis, an Employment Tribunal may decide that the partner is suffering from a disability within the meaning of the Equality Act 2010.
The Equality Act says that dismissing someone or subjecting them to some other detriment because they have a disability, or otherwise failing to make reasonable adjustments to allow that person to remain engaged, gives rise to unlimited liability for disability discrimination.
GPs are usually aware that the Equality Act protects partners as well as employees. They can then bring or threaten disability discrimination claims where they feel that their colleagues have forced their retirement because of stress related illness or are trying to engineer their removal for this reason.
As set out below, appropriate support should be provided to any partner who is suffering from stress. This will prevent their condition becoming a disability and/or limit liability for discrimination, should it become necessary to terminate their engagement.
2. Patient safety
If at any time GPs have concerns that a colleague’s condition affects patient safety, they are obliged to act in accordance with their obligations to safeguard patient and the GMC guidance on Good Medical Practice. This states that you must ask for advice from a colleague (e.g another partner or GP at the LMC), your defence body or the GMC. If you are still concerned you must report the matter in line with GMC guidance.
All practices should have a properly drafted whistleblowing policy to ensure that guidance and laws relating to the disclosure of what is likely to be confidential information is adhered to, with legal advice also being sought in this regard.
It is essential that any report should be carefully documented in case your actions are later alleged to be discriminatory or you are accused of acting in bad faith towards your partner.
Providing there are no concerns about patient care, in the first instance the troubled partner should see their own GP or otherwise seek specialist professional guidance. It would be appropriate for the senior partner colleague who has responsibility for HR issues to address such matters informally (but confidentially) with the individual, keeping themselves appraised as to progress made.
3. Partnership obligations
In situations where the stressed partner does not seek treatment, or their condition continues or worsens, you should consider their rights and obligations as defined in the partnership agreement.
At the outset, when faced with a partner suffering from stress, you should be wary of relying on any provisions in the partnership agreement allowing for compulsory retirement due to absence or a failure to carry out duties. You should first establish whether the partner in question has a disability and what steps might be taken to limit liability in this regard.
An appropriate independent expert (not the partner’s GP) should examine the partner, and provide a report that sets out:
- A diagnosis;
- The condition’s effect on the partner’s ability to carry out their duties;
- A prognosis;
- The steps that might reasonably be taken to assist the partner.
An independent health report may recommend that a partner take periods of rest and then return to work in a phased manner. A failure to allow for this, even if a threshold set out in the partnership deed providing for compulsory retirement after a given period of absence is crossed, or a provision requiring that all duties are carried out is breached, could give rise to a claim under the Equality Act for failing to make reasonable adjustments to allow for the partner to remain engaged
If a medical report provides evidence that supports a retirement on ill-health grounds, the partners may discuss the possibility of voluntary retirement. In situations where this is not agreed and legal advice has been sought to confirm that compulsory retirement would not constitute unlawful discrimination, then the partners would wish to rely on a provision allowing for compulsory retirement after prolonged absence. It is common to allow for compulsory retirement after a period of absence of between 9 and 12 months. Practices with partnership agreements that do not include such clauses will be unable to retire a partner in this situation.
In any event, compulsory retirement may well give rise to a partnership dispute, notwithstanding the provisions of the partnership agreement. A well-drafted partnership deed will include provisions allowing for dispute resolution. Arbitration is often preferred over the courts as it provides confidentiality and can be quite flexible, but if part of the dispute alleges discrimination this will be heard in a public employment tribunal. Disputes where there is no partnership deed allowing for private dispute resolution, however, must be heard in the courts.
4. Medical services contract obligations
An important consideration when a partner is unwell is the implication for the GMS/PMS/APMS contract. If you seek to terminate the relationship by dissolving the partnership, you risk terminating your contract too, so it is critical to follow procedures for retirement (link to retirement checklist post) set out in a valid partnership agreement. In the current environment, dissolution would almost certainly lead to your contract being re-tendered, possibly even the possible closure of the practice. You could also be sued for breach of contract.
If a partner’s condition has given rise to fitness to practise concerns, this could lead to a suspension or erasure from the register. The full consequences of this lie outside the scope of this article but this would prevent a GP from being party to a core medical services contract.
It is critical that this is considered in the partnership agreement. Practices are advised to check that the partnership agreement takes account of the consequences of burnout, as the problem is growing.
As with any legal agreement, it is always advisable to seek the advice of an experienced legal team, who can help with your specific case and personal circumstances.
For more info about this, or any other legal issue relating to your practice, please contact Daphne Robertson on 01483 511555 or d.robertson@drsolicitors.com.
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The Benefits of a Social Enterprise versus Profit making Company
In our recent blog, Where will future practice income come from?, we explained how additional income is unlikely to come from your core GMS/PMS contract. As a result, many GPs are looking to supplement their income from other sources; from their CCG, from the local authority or in other ways.
It looks like the majority of new public money available to primary care will be funnelled through practices working together; the NHS Five Year Forward View, Vanguard monies and the much promised – but yet to be delivered – ‘premises’ money are all strongly suggestive of this. This is one trend in healthcare which seems likely to continue.
If you’re looking at working together with other practices, the chances are that you are either already a member of, or are considering setting up, a GP federation or a GP Network. In this first article in a series of articles linked to GP practice income, we will be looking at the benefits of running this as a social enterprise versus a profit-making company.
Introduction to social enterprise
Most GPs will be familiar with the traditional, profit-making enterprise, where the shareholders each receive a share of the net profits to spend as they wish. In contrast, many GPs know relatively little about social enterprises and their benefits, although they may be under some common misconceptions.
Working for a social enterprise does not, as is sometimes assumed, mean working for free. Everyone working in the business will be paid the going rate for providing their services, and suppliers all get paid in the normal way. Consequently, for most people, there is no practical difference between working for a social enterprise and for a profit making business.
The key is that any ‘surplus profit’ once all the costs of the business have been settled must be invested into the ‘social purpose’ as defined in the objectives of the company. Furthermore, if the business is wound up, any remaining assets would also need to be re-invested back into the social purpose. The precise definition of ‘surplus profit’ and how it can be spent is determined by the type of social enterprise. We will be looking at these different types in another blog post.
While the terms ‘non-profit making’ and ‘social enterprise’ are used interchangeably, it is important to note that a social enterprise can make a profit, and indeed it can be possible for some of this profit to be returned to investors in the business. It’s just that ‘surplus profit’ must go towards supporting the social purpose.
The practical implications and benefits of social enterprises
There are a number of potential advantages to running a healthcare practice as a social enterprise:
- Social engagement is much easier
Community support for social enterprises can be stronger as the business is seen to be working for a good cause, rather than for the investors. Local people may be more willing to contribute their time by volunteering or fundraising; the general feeling of goodwill may attract more patients through the door; there may be fewer complaints as people feel a degree of ownership, and; employees may show more commitment.
- Access to alternative sources of finance
Healthcare practices are traditionally financed through a combination of NHS funding and bank loans. Social enterprises may be able to supplement these with other sources of funding from ethically minded individuals or organisations who are happy to provide capital as a gift or at below market rates since they know that the ‘saving’ will be locked into providing the social purpose rather than extracted as additional profit by the business owners. Examples include community fundraising, crowdsourcing, bequests and legacies, and trust fund grants.
- More opportunities for joint working
It is widely understood that the future of healthcare must lie in better integrating primary care with secondary and social care and that GPs are key to coordinating a patient’s ‘healthcare journey’. The challenge is how to get such a disparate variety of participants to successfully work together. Trust is at the core of any working relationship, and some, if not most, of the necessary healthcare professionals may feel more committed to joint working for a social enterprise where ‘going the extra mile’ has a more direct impact on the community.
- Reduced risk of disputes between business owners
Social enterprises can be ‘owned’ in a variety of ways. Common methods include limited company shares and membership subscriptions. The most appropriate method depends partly on how widely you wish to spread ownership (e.g. a small group of GPs, all local health workers, or all patients?) Since social enterprises have minimal to no value to the owners, there is no goodwill to be valued and none of the resulting arguments between shareholders over the value of their investment on leaving the company. If someone wants to leave they are more likely to simply leave and take their services elsewhere.
- Preferential treatment?
Although CCGs and other public bodies are not currently allowed to prefer social enterprises in procurement, they are able to set selection criteria such as ‘demonstrating community involvement’ which social enterprises may find easier to meet.
In conclusion
Social enterprises hold many apparent advantages in the primary care sector. Since most costs are simply salary costs, healthcare is anyway not normally a sector which generates large ‘surplus profits’. For this reason, the ‘benefits’ of social enterprise can be accrued without the ‘cost’ of losing access to the (non-existent) surplus profit. These benefits include inviting trust from the local community which should hopefully result in better health outcomes.
If a GP federation or Network is set up as a social enterprise, the owning GP practices can remain as profit making partnerships and still be paid by the federation/network for the work they do in the normal way. The GP federation/network will then engage with the local community and with other health and social care providers to become a true ‘multi-speciality community provider’ as envisaged by Simon Stevens in the Five Year Forward View.
The bottom line is that social enterprises remain a little misunderstood. If you’re considering setting up or becoming a social enterprise, it is important to seek appropriate advice on the implications and on the legal entity.
DR Solicitors has already helped numerous GPs establish an operating vehicle for their joint working (GP federations and Network Companies), some of which have been established as Social Enterprises. Please contact Daphne Robertson or Nils Christiansen if you would like to discuss your joint working plans. We would be delighted to hear from you.
For more information about GP networks and federations and any other related issues, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com