Time taken to conclude investigation
19. Mrs L complains that the CQC took too long to complete its investigation. She says the investigation began in November 2021 and was not completed until May 2024 some 30 months later.
20. The Specific Incidents Guidance includes general timeframes for how long an inspector should take to proceed between each aspect of the investigation process. However, it is key to highlight that these timeframes are general and cases vary depending on the length and complexity of the matter under investigation. It can also be affected by time taken by the need for all parties to engage in the process including availability and scheduling.
21. The relevant timeframe excerpts of the Specific Incidents Guidance are: • Time between CQC being notified of an incident and it being referred to either CCAPP or a Specific Incident Team: three months • Mandatory meeting between the whole investigation team to report on investigative progress: four months after the point of allocation • Time between the beginning of the Inspector’s investigation until conclusion: 18 months
22. From what we have seen, the CQC acted within the general timeframes above for most of the above examples. We set out our reasons below.
23. Regarding the time between the incident notification and the CQC referring it to a Specific Incident Team, the nursing home referred the incident on 30 October 2021 and it reached the Specific Incident Team in January 2022. This is within the three months set out in the Specific Incidents Guidance. From there, the Specific Incident Team decided to refer the matter onwards to CCAPP on 8 April which, again, is within three months. A meeting took place to discuss the investigation and its progress on 28 July 2022. This is within four months of its allocation to CCAPP.
24. That said, regarding the completion of the investigation, this is where they do not appear to have met the 18-month window to conclude from allocation. From May 2022, when CCAPP initiated the investigation, according to the general timeframes within the Specific Incidents Guidance, the case should have been concluded by November of that year. A decision was not shared by the CQC until May 2024 meaning it missed that window by six months.
25. While the window was missed, there does appear to be mitigating factors for this, particularly towards the end of the investigation process. From the records available, CQC reached a decision not to progress the investigation further in September 2023. This was following advice received over the course of the investigation. This is within the 18-month target set out in the Specific Incidents Guidance.
26. However, prior to making that decision final it would arrange a meeting with Mrs L’s family as the CQC felt it needed to explore whether further evidence was available relating to the Duty of Candour concerns. This additional meeting was therefore for evidence-gathering purposes, and this could not have been done through other means or from other areas. This meeting did not take place until December which falls narrowly outside of the 18-month window. The family shared some more information and CQC discussed this at another meeting in February 2024 before confirming its decision in a further meeting with the family in May.
27. This shows the CQC’s formal decision was confirmed outside of the 18-month window. While this is outside a general target timeframe of 18 months after allocation to CCAPP we think this does not fall so far short that it is an indication of a failing. We find this is a shortcoming in the service provided, based on factors around it.
28. We can see from the evidence available that actions were on-going in the case throughout the investigation, and it appears to have been logistics that contributed to the extended delay. The outcome of the September 2023 meeting meant three further meetings were needed. These were one with the family to explore Duty of Candour evidence further, one internally to discuss what was provided and make a decision, and a further meeting with the family to share that decision.
29. As we set out earlier, the timeframes within the Specific Incidents Guidance are general targets to work towards and not definitive deadlines. The CQC could have issued a decision in September 2023 but wanted to ensure it had everything it needed to conclude on the Duty of Candour concerns and needed the family to provide that information. This decision is what took it beyond the timeframe and, while a shortcoming, we do not consider it a failing that steps were taken to ensure it was able to reach a fully informed decision.
30. We recognise this this was a lengthy and difficult process for Mrs L and her family. The loss of Mrs I would have been undoubtedly difficult for everyone and the time it took for the investigation to resolve would only have compounded this difficulty. We are pleased to see the CQC has apologised for the time taken and the impact this had on the family.
31. Overall, we consider that though the time taken to conclude the investigation was lengthy, we do not consider it a failing, but rather a shortcoming. The CQC has generally acted within the timeframes set out within the relevant guidance and, where it has not, we can see the mitigating factors for why. Therefore, we will not consider this further.
No right of appeal
32. Mrs L complains that the CQC informed her upon the completion of the investigation that there was no right of appeal if she disagreed.
33. CQC’s Post-Decision Process outlines what can happen after it has made a decision not to prosecute. It outlines that there are two scenarios where a person can ask for a review of that decision. These are where the final decision has been made or where CQC began prosecution action but discontinued or withdrew at Court. The CQC refers to this one as the Victim’s Right to Review. The CQC clarifies that a ‘final decision not to prosecute’ is one where it has applied a full code test to the Crown Prosecutors. Where that does not happen, there is no right to review. CQC will not accept a review of a decision where it has either not started or discontinued an investigation or the incident took place more than three years prior.
34. The CQC has also confirmed to us that someone who is unhappy with its decision not to proceed with a prosecution could challenge this through Judicial Review (JR). In this instance, there would be no need for the CQC to have completed a full code test. The decision itself would be challengeable via a JR regardless.
35. Our Principles set out how we expect organisations to act. In order to be customer focussed, we expect organisations to make clear what customers can and cannot expect from a public body and about their entitlements.
36. The CQC’s Post-Decision process is clear in that a Victim can only request a review of a decision in specific circumstances. While this is not an appeal, as Mrs L has presented it, the spirit remains the same as that meant there was no process within CQC to challenge the outcome. It explains this to Mrs L in its decision letter dated April 2024.
37. Ultimately, reviews are only available when the full code test has been applied as this test determines whether sufficient evidence exists to proceed with a prosecution or not. Cases that do not reach this stage fall outside the scope of the review process. By setting this boundary, the CQC makes clear what a service user is entitled to.
38. We understand Mrs L’s frustrations with what is a difficult situation and we empathise with her concerns. The CQC’s process is clear and reviews can only be requested if the full code test for prosecution has been applied meaning that her case does not fall within the criteria for review. While judicial review is not the same as an appeal, it could have been an alternative avenue available to challenge the decision. Given this, we consider the CQC has acted in line with its processes and our Principles, so there are no indications of maladministration.
Failure to hold the care home accountable
39. Mrs L complains that the CQC’s eventual decision does not hold the care home accountable over its duty of candour obligations. While the Care Home did provide an apology following a complaints investigation, they did not receive a Duty of Candour letter prior to that.
40. Duty of Candour obligations are set out in the Regulations under Regulation 20. This outlines that the Health Service Body must, among other points, provide an apology for the incident ‘as soon as reasonably practicable’.
41. Our Principles state that in order to get things right we expect organisations to have regard to the relevant legislation and that its decision-making should take account of all relevant considerations.
42. We believe the CQC’s consideration of Mrs L’s Duty of Candour concerns were done in line with our Principles. In this case, the CQC’s response sets out the different ways in which the Health Service Body had taken steps to engage with the family. This included communication through phone calls and face-to-face meetings alongside the written apology provided after Mrs L’s complaint.
43. The CQC reviewed whether these actions met the requirements of Regulation 20 through discussions with its legal team and a referral to the CCAPP. The conclusion was that, while the apology letter was issued after Mrs L’s initial concerns, the actions taken by the provider collectively fulfilled the key elements of the Duty of Candour.
44. We appreciate Mrs L disagrees with the CQC’s decision and maintains that the steps taken by the Health Service Body do not meet its Duty of Candour. The delay in providing this and the manner in which it was provided would certainly have added to the already difficult experience of Mrs I’s death. We empathise with the incredibly trying situation she has found herself in and can understand how the Health Service Body’s actions may have contributed to this.
45. Given the detailed consideration of these requirements and the evidence reviewed, we believe the CQC acted in line with our Principles and reached a reasonable conclusion that the Duty of Candour was met in this case. Therefore, we will not consider it further.
Did not complete a site visit
46. Mrs L complains that the CQC did not visit the site as part of its investigation until nine months after the incident.
47. The Specific Incidents Guidance sets out the actions open to an inspector to investigate a case. Under section 4, it outlines that if there are concerns about continuing risk to people who use services then a meeting may be held to determine appropriate actions as part of ‘Stage 1 Initial Assessment’. These actions may include deciding to carry out an on-site inspection ‘where justified’.
48. Our Principles state that public bodies should behave reasonably and ensure that the measures taken are proportionate to the objectives pursued, appropriate in the circumstances and fair to the individuals concerned.
49. We believe the CQC acted in line with both the Specific Incidents Guidance and Our Principles in its decision not to conduct a site visit as part of its investigation. While a visit did take place in July 2022, we note this was only to gather information ‘if required’.
50. With regard to the Specific Incidents Guidance, we can see that the CQC requested and received assurances from the provider shortly after the incident. These assurances included evidence that window restrictors had been replaced and risk assessments for residents were updated. These actions would have greatly mitigated the immediate or continuing risk to the safety of those using the service and meant that a site visit was not necessary.
51. In terms of our Principles, the CQC gathered evidence and assessed the situation through proportionate measures, including relying on information provided by the provider, the Local Authority, and the Police, and other documentation. Although a site visit was an option under the guidance, the CQC determined that the steps that had already been taken were enough to address ongoing risk. Therefore, its decision to avoid a site visit was appropriate and in line with our Principles.
52. With the above in mind, we do not believe that there are any indications of a failing in the CQC’s decision not to complete a site visit as part of its investigation.
53. We understand that Mrs L is unhappy a site visit did not take place sooner and believes this should have been done to aid the investigation. To find that it was not done until nine months later would have been frustrating given the seriousness of the events being investigated and we acknowledge her stance on this.
Did not send representation to the inquest
54. Mrs L complains that the CQC failed to send a representative to the inquest into her mother-in-law’s death.
55. The Inquest Guidance sets out how the CQC engages with Coroners and inquests. There is no obligation to attend an inquest and equally no specific requirement to listen to the recordings as part of the evidence gathering process. There are times when attendance may become mandatory but that invitation is at the discretion of the Coroner and not the CQC.
56. Our Principles state that, in decision-making, an organisation should take account of all relevant considerations, ignore irrelevant ones and balance the evidence appropriately.
57. We cannot say it is a failing that the CQC did not send a representative to the Inquest given there is no obligation, legal or otherwise, for them to do so. That said, an Inquest is a source of intelligence for an investigation and we have considered how the CQC has processed that.
58. We know that the CQC did not attend and did not listen to the recording of the inquest. That said, the Coroner provided a bundle of evidence following this including their report. Having reviewed this, the CQC felt that the issues that arose during the Inquest would not have advanced the criminal investigation they were pursuing. Their investigation related to the window restrictors and what came up during the Inquest was, for example, staff fluency in English.
59. With the above in mind, we consider the CQC acted in line with the Inquest Guidance and our Principles. There was nothing requiring them to send an attendee to the Inquest but, following it, the relevant information was considered and balanced when it reached a decision. Therefore, we will not consider it further.
60. As with the site visit, we understand Mrs L believes not attending the Inquest was to the detriment of the investigation and that the CQC should have sent a representative. To attend the Inquest would have been an already challenging moment and we can entirely appreciate how it would look that the CQC did not also do so despite the investigation. We hope our investigation helps explain its reasons for not doing so, and we wish he and her family well for the future.