The Care Quality Commission (CQC) has a broad array of enforcement powers at its disposal and is unafraid to take decisive action in response to perceived areas of non-compliance. Recent figures for the 2023-24 period indicate that 30% of CQC inspections resulted in findings of regulatory breaches, with 8.59% of these leading to some form of enforcement action. While warning notices are the most common form of enforcement, 2.39% of regulatory breaches result in the issuance of Notices of Proposal (NOPs).

Most healthcare providers may never encounter a NOP, but if one does arrive, it is crucial to understand what it entails, how to respond effectively, and the potential outcomes. This knowledge is vital for taking prompt and decisive action to protect your service.

What is a Notice of Proposal?

NOPs are part of CQC’s civil enforcement powers under the Health and Social Care Act 2008 (HSCA 2008). A NOP may propose one or more of the following actions regarding a registered service provider or manager:

• Imposing, removing, or varying conditions of registration;
• Suspending registration;
• Canceling registration.

NOPs can also be issued when CQC proposes to refuse or amend an application for new registration or proposes to refuse an application to remove or vary conditions of an existing registration.

In an enforcement context, NOPs are typically issued after a CQC assessment and are based on the assessment findings. They are used to prompt providers or managers to make necessary improvements to protect service users from harm. Recipients of a NOP have the opportunity to submit representations to CQC, which will be considered before a final decision is made.

A NOP is served via a letter, usually sent by email, detailing the reasons for the proposal as required by section 26 of HSCA 2008. If service users and staff are referenced, CQC should provide an identification key to help the recipient understand and investigate the allegations. Additionally, CQC may include a table of evidence and may provide copies of some evidence if the recipient does not already have them.

Why Should Providers Respond to NOPs?

A NOP signifies serious concerns from CQC about a provider or manager. According to the CQC enforcement decision tree, NOPs are considered for medium to high-risk breaches. Failure to address the concerns or challenge the basis of the NOP can lead to a Notice of Decision (NOD). If a provider or manager does not respond to a NOP, it will automatically be adopted by CQC, and a NOD will be issued.

Once a NOD is issued, the provider or manager can appeal to the First-tier Tribunal. The appeals process can be costly and time-consuming, and if not appealed in time or if the appeal fails, the action outlined in the NOD will take effect.

Given what is at stake, addressing the matter promptly following receipt of a NOP is crucial. Even if representations are unsuccessful, they can buy time to address the issues. This is especially valuable for recipients working to implement improvements. Additionally, the representations process helps set out the case clearly for any potential subsequent appeal to the Tribunal.

How Can a Provider Respond to a NOP?

Providers and managers have 28 days from the date of receipt of a NOP to submit written representations to CQC. The burden of proof is on CQC to demonstrate that the proposed action is reasonable and proportionate at the time the decision is made.

Representations may include:

• Factual challenges to the information used by CQC;
• Legal challenges to the proportionality of the proposed action;
• Updates on the current service status;
• Supporting evidence for assertions made.

It is essential to address every aspect of the NOP in detail with supporting evidence, as decision-makers will look for any perceived gaps to justify adopting the NOP. Improvements must be shown to be embedded and properly overseen to prevent recurrence.

Increasingly, CQC issues NOPs before issuing the draft assessment report, which means providers haven’t had a chance to comment on the report’s factual accuracy. This can lead to inaccuracies in the NOP that must be challenged during the representations process.

CQC should consider the provider’s or manager’s current position when determining if the action is proportionate. Any improvements made must be taken into account, and CQC should re-inspect the service to assess these changes before issuing a NOD.

How Will CQC Respond to NOP Representations?

Following receipt of representations, CQC can:

• Decide not to adopt the NOP and withdraw it;
• Decide to adopt the NOP and issue a NOD.

CQC should ideally reassess the service before making a decision, particularly if representations highlight improvements made since the initial assessment. However, this is not always guaranteed.

There is no statutory timeframe for CQC to respond to representations, with response times varying from as little as a week to over six months.

When Will a NOD Take Effect?

A NOP is only a proposal. A NOD adopted after a NOP does not take effect immediately. It will only take effect when a final determination is made, which can be either:

1. If a NOD is received and not appealed;
2. If an appeal is made to the Tribunal and is either withdrawn, struck out, or lost at a final hearing.

Providers and managers have ample opportunity to persuade CQC that the proposed action is unnecessary, starting with the NOP representations process. Even if a NOP is adopted and the matter proceeds to the Tribunal, there is room for negotiation.

Will CQC Publish NOPs?

CQC is prevented from publishing specific information on NOPs until the process is finalised. However, CQC must inform relevant authorities and associated bodies that enforcement action is being taken and may send them copies of the NOP.

In conclusion, responding promptly and effectively to a NOP is crucial. The HLTH Group is best equipped to support you in navigating the complexities of the NOP process, ensuring your service remains compliant and operational.