Blog

by Errol Archer

Overall, General Practice has performed better than other health and social care sectors inspected by CQC. The most recent CQC State of Care report shows that only 1% of GP practices were rated Inadequate in 2022 and 2023. This equates to approximately 60 individual practices. However, the impact of an Inadequate rating can be devastating for staff morale and patient confidence and the rating reflects underlying regulatory concerns that must be urgently addressed. Where a GP practice has been rated Inadequate following two consecutive inspections, CQCs guidance requires it to consider issuing an initial Notice of Proposal to cancel registration which may be followed by a Notice of Decision to cancel registration.

If CQC has issued your practice with a Notice of Decision, you have 28 days from the date you received the Notice to submit an appeal to the First-tier Tribunal (Care Standards).

The time required and work involved in preparing an effective appeal and then dealing with the tribunal and CQC, should not be underestimated. If an appeal goes all the way to a hearing, the process typically takes up to 7 months.

Case study

Background: A GP provider with a recent history of mixed outcomes at CQC inspections was placed in CQC ‘special measures’ following an inadequate rated inspection. The practice attempted to work with CQC and the local Integrated Care Board (ICB) (then a CCG) to address the concerns. A subsequent inspection seven months later resulted in a further inadequate rating, prompting CQC to issue a Notice of Proposal to cancel registration. With the support of a specialist GP healthcare consultant, the practice prepared a factual accuracy response to the draft inspection report and representations to the Notice of Proposal. Unfortunately, CQC were not persuaded, the draft report was finalised without any changes to individual ratings and CQC issued a Notice of Decision to cancel registration.

Our expert legal input: The practice instructed BMA Law’s expert Consultant Solicitor,  Errol Archer, to act for them in the appeal against the Notice of Decision. Following initial strategy discussions about the concerns raised, ongoing succession planning at the practice, available evidence and legal tactics, a full and persuasive appeal was prepared and submitted to the tribunal. This was accompanied by extensive supporting evidence. We worked as a team with the practice manager, responsible partner and the specialist GP healthcare consultant, to prepare the appeal. Important aspects of the appeal included succession planning, which involves having a well drafted partnership agreement in place to plan for the retirement of partners and making interim support available to the practice in order to support regulatory compliance and patient safety.

Alongside CQC’s enforcement action, the ICB issued a Remediation Notice and Termination Notice relying in the main on the evidence contained in CQC’s notices of proposal and decision and also referencing CQC’s inspection report. Working with the specialist GP healthcare consultant, we liaised with the ICB to explore a way forward.

To protect the practice’s position, we made a formal referral of the dispute with the ICB to NHS Resolution and prepared formal representations to the Adjudicator.

Outcome: In light, in particular, of the succession planning proposal, the interim support package and the strength of evidence of improvements in support of both the referral to NHS Resolution and the tribunal appeal, the ICB agreed a resolution which avoided the closure of the practice. CQC agreed to pause the enforcement action and a ‘stay’ of the appeal at tribunal. Improvements found at the next CQC inspection resulted in an improved rating and the practice moved out of special measures. We invited CQC to agree a ‘consent order’ to end the enforcement action under the Notice of Decision and to bring the tribunal proceedings to an end.

Key points for a successful CQC appeal:

1. Strategy – develop an overall strategy at the outset;
2. Experts – bring in relevant expert healthcare consultants, as required
3. Evidence -focus on identifying and providing relevant evidence
4. Submissions – submit strong and persuasive appeal documentation at the first opportunity
5. Improves – implement improvements so as to build additional evidence to support the appeal
6. Communication – seek a practical resolution and keep channels of communication open with both the CQC and ICB
7. Work towards agreement with the regulator to end enforcement by the use of a ‘consent order’ agreed by the parties and issued by the tribunal

How can BMA Law help?

Errol Archer and his colleagues at BMA Law have handled hundreds of appeals across different tribunals and worked with many health and care providers including GPs, independent healthcare, care homes and other providers, both large and small.

We view a successful appeal as one which never gets to a hearing because the strength of the appeal that we submit, with supporting evidence, persuades CQC to stop the enforcement action. In some cases, matters must be escalated to CQC Board level to encourage a satisfactory resolution.

Evidence is all

BMA Law work closely with your team to identify evidence to support your case. We often work alongside experienced and respected healthcare consultants, to assist you. Evidence is all when bringing an appeal. Without supporting evidence, even the most highly skilled legal argument and a genuine commitment by the partners and staff to address any concerns, is likely to fail. We will advise you realistically on the merits of your case based on the available evidence.

Errol Archer has led on many successful appeals against the cancellation or refusal of registration or the variation of conditions for GP’s, independent healthcare providers and others. He and his team are skilled in negotiating the early resolution of enforcement action with CQC and seek to maintain and build constructive relationships with the regulator, at all levels.

Why waste your valuable time and resources on long drawn out appeals when early advice and strong initial appeal documentation can make all the difference?

Why Use BMA Law

BMA Law was established by the British Medical Association to provide expert legal services tailored specifically to BMA members and their family members. Our team consists of legal professionals specialising in healthcare related law and their focus will always be on your specific need. We specialise in providing legal advice in the following areas: regulatory (GMC & CQC), corporate & commercial including partnership agreements and practice mergers/takeovers, property law and dispute resolution.

Get in touch

To discuss our CQC and other legal matters please contact us on 0300 123 2014 or email info@bmalaw.co.uk