The CQC’s new “Closed Cultures” guidance – a signal of a new super-critical approach?

The CQC has recently published new guidance for its operational staff on “closed cultures” which it defines as a “poor culture in a health or care service that increases the risk of harm [including] human rights abuses”.

Abuse in care has – and rightly so – been high on the CQC’s agenda for a while now. Following the Winterbourne View and Whorlton Hall scandals, and the subsequent enquiries carried out, the CQC has faced significant criticism and appears to have been working hard to improve regulation of services catering for some of the most vulnerable people in society most at risk of abuse.

The emphasis on and definition of “closed cultures” when considering risk of abuse is perhaps unhelpful, in that it risks limiting how the CQC will approach the issue widely. If there is a service where there is a risk of abuse, that risk should be identified and addressed, whether or not it meets the conditions to be described as a “closed culture” according to the CQC. However, we can leave aside the merits of the CQC’s emphasis for present purposes.

The guidance has been made public but is intended as an internal CQC guide for operational staff when carrying out their regulatory duties. It is intended to help CQC staff understand and identify closed cultures and risks of closed cultures developing, understand human rights abuses and what action to take if closed cultures are identified. The guidance is not limited to inspection activity and it will apply during the CQC’s phase of working under its “Emergency Support Framework” as well as other regulatory activity going forward.

The guidance is split into a number of sections, the first of which explains the “inherent risk factors” which the CQC consider will indicate that a closed culture is more likely to develop. For each risk factor the guidance provides examples of what the CQC should “look out for”. Services which are deemed to have one or more inherent risk will be more closely monitored by the CQC.

These “inherent risk factors” are:

• People may be experiencing poor care
• Weak leadership and management
• Poor skills, experience and training of staff providing care
• Lack of external oversight

The guidance then goes on to explain what “warning signs” staff should look out for in all services. The guidance suggests that if one or more warning sign is present, the service should be deemed to have developed, or being in the process of developing, a closed culture, whether intentionally or otherwise.

The “warning signs” are:

• Poor experiences of care
• Use of restrictions and restraint (including restraint, segregation and seclusion)
• Physical environment
• Poor skills, experience and training of staff providing care
• Poor and weak leadership and management
• Lack of external oversight

Again, the guidance sets out a number of examples under each of the above warning signs which may be indicative of it. Where one or more “warning sign” is present, the CQC deems it highly likely that there are breaches of the fundamental standards or potentially human rights breaches already taking place.

Of some concern, is that the “risk factors” and the “warning signs” and the examples provided are very broadly drafted. This affords a significant degree of subjectivity in how individual CQC staff will interpret and apply the guidance in practice.  As with any guidance which allows for a considerable degree of subjectivity, there is a serious risk of inconsistent application between different inspectors, or different teams within the CQC. Further, the guidance could be interpreted so that almost any service could be deemed to have an “inherent risk” or be deemed a “closed culture” at one point or another (particularly during the COVID-19 response).

In places, the guidance refers to the period “During COVID-19”. Whether this is a sign that they will review and update the position as soon as COVID-19 is no longer a public health issue, we do not know. The guidance does, however, reinforce the CQC’s publicised view that the risk of closed cultures developing is much more likely in light of the restrictions in place for COVID-19 and that the CQC is seeking to address this urgently. In practical terms, providers can expect that how they have reacted to COVID-19 to come under scrutiny in light of this guidance in the very near future.

The CQC appears to have a broader political agenda to come down much heavier on services – particularly larger services – which cater for some particularly vulnerable population groups. Unfortunately, these services have attracted a lot of bad press of late and we have seen a marked increase in CQC intervention and enforcement activity. However, it must be remembered that there are some fantastic services out there and not every service where a culture of abuse could, in theory arise, should be tarred with the Winterborne View or Whorlton Hall brush.

We are of course fully supportive of the CQC seeking to reduce the risks of human rights abuse in care services, but the right way to go about it is not necessarily to take a prescriptive view, based on a series of pre-defined ideas and a very broad brush approach to identifying services for heightened scrutiny, or indeed assuming there are breaches of the fundamental standards or human rights taking place. Good providers need more support at this time to help them to continue to provide quality care. They do not need to be subject to unreasonable, disproportionate and unnecessary levels of scrutiny from their regulator where there is little or no risk of a culture of abuse developing, but a CQC employee considers there is simply because the service now happens to meet general criteria set out in the guidance.

It should be remembered that whilst CQC guidance may have some weight, it is not the law. Guidance should be considered and applied where reasonable and proportionate to do so but there will be instances where it is suitable to depart from it. Provided the CQC use this guidance wisely and apply it in a reasonable, proportionate and consistent manner, it could help the regulator to protect and promote people’s rights and help them to better handle services, quickly, where there may be more risk of service users being subject to abuse. On the other hand, it does send a strong signal that they will be looking at many services in a new light, even where those services may have had an otherwise exemplary regulatory history.

The guidance explains that where the CQC deems there is a “high risk” of a closed culture (whether developed or not) that inspections should no longer start from the premise of “looking for good”. It will also assume that a closed culture means that breaches of the fundamental standards, or human rights, is already taking place. This is of some concern. Whilst it is entirely understandable that the CQC should pay particular attention to services where human rights abuses are more likely to take place, cynics might consider this a backdoor method to adopt what is essentially a new approach to inspecting services which may meet the criteria in the guidance. Given that the CQC could interpret the criteria very widely, this guidance looks like it could set a precedent for inspectors to “looking for bad” or assuming there are breaches already taking place in a high number of services. We hope this is not the case, but it cannot be ruled out.

The CQC’s operational staff should of course be as well-equipped as possible to identify services where service users are at particular risk of abuse. On the one hand, the CQC appears to be trying to set out a consistent and transparent approach to its policy on closed cultures in this guidance, which is generally a positive thing. On the other hand, we hope that the CQC use and apply this new guidance with common sense and adopt a reasonable, proportionate and risk based approach to its work more broadly which is transparent to providers, rather than to overuse the “closed cultures” guidance to further its own political agenda in a blanket fashion. Unfortunately, we have seen over-reliance on guidance before from the CQC, so it is not unforeseeable that things will go that way in practice.

Providers would be wise to familiarise themselves with the guidance as it will feature in CQC activity going forward. It is helpful to providers insofar that it indicates what inspectors (and other CQC staff) will be looking for when they engage with a service and whether any of the CQC’s activity might uncover something that makes them more inclined to tarnish a service with the “high inherent risk” or “closed culture” brush.

Good providers will no doubt have extensive experience of safeguarding against abuse but even for those with robust measures in place, the guidance is, if nothing else, a useful stocktake of some potential red flags for abuse to watch out for in their services. It is worth considering in the interests of continued improvement, learning, and risk assessment in any event.

The full guidance is available here.