Can the CQC demand that providers produce information to them?

Many of the powers exercised by the Care Quality Commission (CQC) are contained within the Health and Social Care Act 2008. The Act contains a specific power to enable the CQC to require documents and information. Section 64 permits the CQC to require information from, amongst others, any person who carries on or manages a regulated activity, and thus this will include all care home operators.

The power contained in Section 64 is to require the provision of information, documents or records which the CQC considers ‘necessary or expedient to have for the purpose of any of its regulatory functions.’ The power covers information, documents or records kept on computer or other formats, and if necessary the provider can be required to provide the information in a legible form (for example, downloading from a computer).

Failure to comply with a request under Section 64 is an offence punishable by a fine.

Additional powers

Section 65 of the Act also empowers the CQC to require prescribed persons to provide an explanation in relation to any relevant matter to the CQC. A ‘relevant matter’ is defined by the legislation as including any documents, records or other items inspected, copied or provided, or any information given under Section 64.

Accordingly, where the CQC needs additional input to understand documentation and information, it is entitled to require the provider to give that. Failure to do this is a separate offence.

Use of Section 64

The power contained within Section 64 is a very useful tool for the CQC. Where it has concerns about the provision of a service, the request for information can provide it with invaluable evidence to understand whether there are indeed problems.

Accordingly, where a request for information is received from the CQC, this should be treated very seriously. It almost certainly means that there are concerns about the service and it is considering enforcement action. That might include a notice of proposal to impose conditions on the provider’s registration or even close down a location.

Responding to a Section 64 request

The response to a Section 64 request should be undertaken very carefully. Care should be taken to provide as much information as is relevant to answer the request by the CQC, but also, to the extent possible, deal with any anticipated concerns that they may have in relation to the service.

Early legal advice is often equally important to consider the likely thrust of the CQC’s concerns and make sure that the request has been properly answered.

Solicitors who specialise in advising care providers on CQC issues will also be able to assist them with action plans to address any service deficiencies. Early action of this sort may head off subsequent enforcement action, or at the very least, increase the prospects of defending it successfully.