Monitoring and regulation September 2021 to September 2022: equality impact assessment

• Executive Team updates
• Weekly calls with Senior Responsible Officers and Operations
• Weekly Steering Group meetings
• Weekly Policy Steering Group meetings
• Workshop with sector representatives and project team on the methodology
• Workshops with Intelligence
• Intranet page created and populated
• FAQ developed and managed
• Issues and improvements developed and managed
• Conversations with colleagues on the approach, through internal channels (for example, Yammer, Bulletin, intranet)
• Shared Direction calls
• Directorate and all staff calls

• Provider bulletins and external briefing packs
• Chief Inspector letter
• Brief key stakeholders across all audiences including
• Trade Association meetings
• Healthwatch England strategic meeting
• Briefings with General Medical Council and British Dental Association

• Build on existing engagements (for example, through webinars, surveys, CitizenLab activity, Local Healthwatch focus groups)
• Local community and voluntary group bulletins
• User research on the public statement and wording

• Executive and SLT30 review
• Regulatory Policy Steering Group

Impact

There is existing evidence that COVID-19 has had a greater impact in older age groups.

A survival analysis looked at people with a positive test, and those aged 80 or older, when compared with those under 40, were 70 times more likely to die. These are the largest disparities found in this analysis.

Older people, and people of all ages with pre-existing medical conditions (such as diabetes, high blood pressure, heart disease, lung disease, or cancer) appear to develop serious illness more often than others. Read Coronavirus disease (COVID-19): Risks and safety for older people (World Health Organization).

Older people living in care homes are at risk of not being able to access NHS inpatient services as they have a backlog and a long waiting list to deal with. GPs have referred fewer patients for care to help hospitals tackle the pandemic and also because some patients were reluctant to risk getting infected by going into hospital.

Therefore, we need to be mindful of the impacts on increased age and likelihood of long-term conditions as we cross the threshold and resume inspection activity.

The programme is aware that the risk of infection from COVID-19 will continue to create an inequality, as there is a risk that it can hinder on-site monitoring visits by CQC staff.

We need to be specifically mindful that any methodology that adapts our pre-pandemic regular programme of rolling physical site visits is risk and regulatory impact-assessed against our statutory responsibilities with regard to the Regulated Activity Regulations, the Registration Regulations that give rise to statutory notifications that assist our monitoring, Mental Health Act Monitoring, and Mental Capacity Act including Deprivation of Liberty Safeguards monitoring. These issues are often important in the care of older people.

We also need to be mindful of our Public Sector Equality Duty and our duties as a public sector body to protect the human rights of people who use services within the remit of our functions - i.e the span of our regulations.

Mitigation

Inspectors and health professionals at care homes have undertaken mitigation actions, in keeping with scientific and medical advice received from UK Government guidance, to contain the spread of coronavirus.

CQC introduced the Emergency Support Framework (ESF) and Transitional Regulatory Approach (TRA) to reduce face-to-face visits to services that are classed as having people in the vulnerable groups, including older people.

The Programme aims to adhere to the foundation established through the ESF and TRA, but to progress engagement with a hybrid approach of virtual contact and visits where the site status is safe to do so.

Older people are more likely to face access barriers in being able to tell us their experience of care using virtual engagement methods. We will need to build in a range of accessible engagement methods that enable us to understand the experiences of older people using health and social care services.

The Monitoring Approach policy guidance includes agreed key lines of enquiry (KLOEs) to explore how the provider delivers safe, effective, caring, responsive and well-led treatment and care to people, and identify any risks. A set of KLOEs were agreed to ensure risks for people using services can be identified including those at risk of greater impact of COVID-19. There is a risk that focusing on a smaller number of KLOEs will mean that key equality and human rights KLOEs important to protect older people might be excluded from the focus.

Older people are more likely than others to need the protections of the Mental Capacity Act (MCA) including the Deprivation of Liberty safeguards (DoLs). Most people with a DoLS authorisation are over 70 years old and 70% of them are care home residents. Mitigations relating to our duties in relation to the MCA and DoLs are given under the disability section, as the purpose of this legislation is to protect people of all ages with cognitive impairments.

There are opportunities to build into our assessment methods key issues around access to, and outcomes from, care for older people that we have learned through COVID-19, such as access to healthcare for older people living in care homes.

The COVID-19 vaccination programme, rolled out from December 2020 has successfully vaccinated the first phase priority group including residents in a care home for older adults and staff working in care homes for older adults and all those 50 years of age and over (to those who have been able to have the vaccination).

Impact

In terms of CQC staff with caring responsibilities: when caring for someone who is deemed to be extremely vulnerable, advice has been to take extra precautionary measures by only providing essential care and ensure carers follow the NHS hygiene advice for people at higher risk.

In terms of gathering information from carers for use in our regulatory activities: Some carers have specific responsibilities towards people they may represent, for example Legal Power of Attorney for finances or wellbeing, or Relevant Person’s Representative with regard to the Deprivation of Liberty Safeguards (DoLS). More targeted and or fewer physical site visits may reduce the opportunity for by-chance engagement.

Mitigation

This programme’s approach builds upon the Emergency Support Framework (ESF) and Transitional Regulatory Approach (TRA) guidance, which enables protection of CQC staff caring for clinically vulnerable member of their households.

The learning has been developed to be accessible outside normal working hours to allow for completion around other responsibilities.

It is important that we hear experiences of carers and people with caring responsibilities. In the absence of visiting services and meeting these people, much of this work will be done virtually using telephone and video conference methods, for example. A methodology was proposed and approved in the ‘Peoples Voice’ paper outlining activities, for example working with stakeholders, to ensure we hear the experiences of carers. This work is currently under development.

We also have a duty to monitor the use of the Mental Health Act (MHA) in services. We continue to visit regularly all wards that treat detained patients, and we prioritise the wards to be visited, based on local intelligence, and the information we hold in relation to services. Our primary focus is speaking to detained patients in their place of detention, and our revised methodology uses a combination of both on and off-site activities within a single MHA monitoring visit to facilitate this.

Our methodology for monitoring the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DoLS) will need to include an understanding of inherent risk in services where a DoLS authorisation is known to be in place - and also serve a preventative agenda where site visits may take place (if it is safe to do so re: COVID-19) even if no specific risk or persons known to have a DoLS authorisation is apparent but other risk factors may be present. Virtual engagement with the representatives of people using services with a DoLs authorisation (for example, Legal Power of Attorney holders or Relevant Person’s representatives) supported by Experts by Experience will be undertaken.

Impact

Staff with disabilities may require support to complete the learning.

Many providers of adult social care also provide specific services to support disabled people.

Many disabled people are totally dependent on the care they receive. CQC abides by and adheres to the following rights of disabled people and access to healthcare: The rights of disabled people, of all ages, as set out in the Human Rights Act (1998), the Mental Capacity Act (2005), the Equality Act (2010) and the United Nations Convention on the Rights of Persons with Disabilities (2006) and the Convention on the Rights of the Child (1989).

Due to the impact of COVID-19, access to specific services has become difficult as resources have been deployed across the UK healthcare system to tackle COVID-19 priorities. This may place disabled people at a disadvantage as normal access to health and social care may be impeded.

The programme has identified that using a virtual regulatory risk assessment method will affect our ability to meet and speak with disabled people who use services. This may affect how we identify inequality when disabled people are denied their rights.

We need to be specifically mindful that any methodology that adapts our pre-pandemic regular programme of rolling physical site visits is risk and regulatory impact-assessed against our statutory responsibilities with regard to: the Regulated Activity Regulations, the Registration Regulations which give rise to statutory notifications which assist our monitoring, Mental Health Act Monitoring, and Mental Capacity Act including Deprivation of Liberty Safeguards monitoring.

Mitigation

The learning, and Monitoring Application, are designed to be fully accessible, for example compatible with immersive reader, Dragon application etc.

Some disabled people will face barriers in being able to tell us their experience of care using virtual engagement methods. We will need to build in a range of accessible engagement methods that enable us to understand the experiences of disabled people using health and social care services.

The Monitoring Approach policy guidance includes agreed key lines of enquiry (KLOEs) to explore how the provider delivers safe, effective, caring, responsive and well-led treatment and care to people, and identify any risks. A set of KLOEs were agreed to ensure risks for people using services can be identified including those at risk of greater impact of COVID-19. There is a risk that focusing on a smaller number of KLOEs will mean that key equality and human rights KLOEs important to protect disabled people might be excluded from the focus (covered by cross cutting risk 2).

We also have a duty to monitor use of the Mental Health Act in provider services. We continue to visit regularly all wards that treat detained patients, and we prioritise the wards to be visited, based on local intelligence, and the information we hold in relation to services, such as statutory notifications. Our primary focus is speaking to detained patients in their place of detention, and our revised methodology uses a combination of both on and off-site activities within a single MHA monitoring visit to facilitate this.

We also have a duty to monitor the use of the Mental Capacity Act (MCA), including the Deprivation of Liberty Safeguards (DoLS). The MCA is relevant to all people aged 16 and over in any setting, and the DoLS to people aged 18 and over using care homes and hospitals of all types. Some deprivations of liberty are authorised through the Court of Protection, for example, for children and for those not in care homes or hospitals. Our pre-COVID-19 MCA and DoLS monitoring was based primarily on a rolling programme of site visit inspections across locations. This also allowed us to discharge our responsibilities as a National Preventive Mechanism (see section 7 human rights), particularly the preventive part. The intention of this part is not to respond to risk as such, but to proactively monitor all places of detention/deprivation whether or not a specific risk is known/identified. DoLS is effectively an article 5 protection mechanism.

Our methodology for monitoring MCA and DoLS will need to include an understanding of inherent risk in services where a DoLS authorisation is known to be in place. It also needs to serve as a preventative agenda where site visits may take place (if safe to do so re: COVID-19) even if no specific risk is apparent or people are known to have a DoLS authorisation, but other risk factors may be present.

We will carry out virtual engagement with people who have a DoLS authorisation, supported by Experts by Experience. There will be a need to ensure that notifications of outcomes of DoLS applications sent to CQC are closely monitored.

There are opportunities to build into our assessment methods key issues around access to and outcomes from care for disabled people that we have learned through COVID-19, such as access to healthcare for disabled people living in care homes.

Impact

There is evidence that people who are Black or from minority ethnic groups have a higher risk of developing COVID-19. The Public Health England review of disparities in the risk and outcomes of COVID-19 shows that there is an association between belonging to some ethnic groups and the likelihood of testing positive and dying with COVID-19.

The review found that the highest age standardised diagnosis rates of COVID-19 per 100,000 population were in people of Black ethnic groups, and the lowest were in people of White ethnic groups. Read the review - COVID-19: understanding the impact on BAME communities (GOV.UK).

The programme is aware that COVID-19 infections and deaths have affected Black and minority ethnic communities most severely, and so the risk of infection remains higher in these communities. This will continue to create an inequality, as the nature of COVID-19 can hinder site monitoring visits by CQC staff for those local areas that contain a higher percentage of people from Black or minority ethnic groups.

The programme has identified that using a virtual regulatory method may affect our ability to meet and speak with people from Black or minority ethnic groups or communities who use services. This may affect how we identify risk, inequality and hear their experience of care.

We need to be specifically mindful that any methodology that adapts our pre-pandemic regular programme of rolling physical site visits is risk and regulatory impact-assessed against our statutory responsibilities with regard to: the Regulated Activity Regulations, the Registration Regulations that give rise to statutory notifications that assist our monitoring, Mental Health Act Monitoring, and Mental Capacity Act including Deprivation of Liberty Safeguards monitoring.

CQC needs to be mindful of potential disparity of engagement in inspections during the transitional period for certain local areas across England, as a result of COVID-19 inhibiting visits, as areas with a higher number of people from Black or minority ethnic groups might have higher rates of infection.

Mitigation

Public Health England (PHE) advice regarding the health and wellbeing of staff in Black or minority ethnic groups is that managers should risk-assess staff to ensure work activities do not expose them to unacceptable levels of risk. The main objective is to minimise exposure to and risk from COVID-19 for colleagues, and where possible to enable them to continue undertaking a full range of activity. Where a significant risk is identified and colleagues cannot undertake the full normal range of activity, they will be deployed to other meaningful work which presents a manageable risk.

This individual self-risk assessment form for colleagues from Black or minority ethnic groups acts as a first filter, which enables us to understand what kinds of work a colleague can undertake. It ensures work activities undertaken do not expose them to unacceptable levels of risk. The main objective is to minimise exposure to and risk from COVID-19 for colleagues, and where possible to enable them to continue undertaking a full range of activity.

There are opportunities to build into our assessment methods key issues for people from Black or minority ethnic groups that have arisen through COVID-19, including agreed national actions to address this, for example in the NHS Phase 3 letter on restarting services after COVID-19. The policy guidance for the monitoring approach includes agreed key lines of enquiry to explore how the provider delivers safe, effective, caring, responsive and well-led treatment and care to patients and identify any risks. This includes asking the provider how they take account of the particular needs and choices of different people and how risks to people are assessed, and their safety monitored and managed so they are supported to stay safe. The method also includes a key line of enquiry under well-led to ask how the provider is taking action to protect the health, safety and wellbeing of staff, including staff from Black or minority ethnic groups.

It is important we hear the experiences of Black and minority ethnic communities. In the absence of visiting services and meeting people, much of this work will be done virtually using telephone and video conference methods, for example. A methodology was proposed and approved in the ‘Peoples Voice’ paper outlining activities, for example working with stakeholders, to ensure we hear the experiences of people from Black or minority ethnic groups. This work is under development currently.

In terms of our duties under the Mental Health Act, we continue regularly visit all wards which treat detained patients. People from a Black, Asian and/ or other minority ethnic background, are disproportionately detained under the MHA. We are contributing as CQC to NHS England and Improvement’s ‘Advancing Mental Health Equalities’ programme of work, and as part of this we are designing specific prompts for use on MHA visits which will help us to better understand how race, culture and other protected characteristics impact individuals’ experience of care under the Mental Health Act.

Impact

There is evidence that working-age males diagnosed with COVID-19 were twice as likely to die as females. It is not yet fully clear what drives the differences in outcomes between males and females. Read the report - Disparities in the risk and outcomes of COVID-19 (Public Health England).

There is also evidence of an increase in domestic violence during the pandemic, which disproportionately affects women. Women are also more likely to work in health and social care, which are high risk occupations for transmission of COVID-19. Women live longer on average than men, and are therefore more likely to use adult social care services for older people, which are environments where there was a high risk of COVID 19 infection during the first wave of COVID-19.

Mitigation

As part of monitoring visits, CQC inspectors are routinely informed of the current risks regarding COVID19, and that the monitoring approach has been in place to safeguard inspectors and care settings from infection. This programme seeks to promote and adopt risk assessment during a transition phase, which will act as a first filter, which enables us to understand what kinds of work a colleague can undertake, and this should be completed with their line manager before looking at the work activity risk assessment.

Our regulatory work to help ensure people in care homes and staff working in health and social care are protected from any future or further wave of COVID-19 will have a particular impact on women.

Impact

Trans people now face delays or cancellations on essential gender-affirming treatment, which many have been waiting years to access. The programme is aware that transgender change is particularly complex, and ongoing care and professional support are required. Read How COVID-19 is affecting LGBT communities (Stonewall).

Mitigation

The Programme recognises and advocates support for any CQC staff that are undergoing or have ongoing gender-affirming treatment, and this is part of CQC values and is fully supportive to mitigate any risk to staff, through supportive dialogue between line manager and HR. We are aware that certain on-going treatments will have ceased or been delayed due to the impact of COVID-19 on the healthcare systems, resulting in redeployment of staff.

The monitoring approach policy guidance includes agreed key lines of enquiry to explore how the provider delivers safe, effective, caring, responsive and well-led treatment and care to patients and identify any risks. This includes the key line of enquiry to explore about a culture of high-quality, sustainable care, which includes asking the provider how they monitor and protect the health, safety and wellbeing of staff, for example, access to emotional support. The policy guidance also includes key lines of enquiry to explore and identify risk around people accessing treatment in a timely way, and how services are being reinstated and handling backlogs of elective activity.

It is important we hear the experiences of trans people who use services. In the absence of visiting services and meeting people, much of this work will be done remotely using telephone and video conference methods. A methodology was proposed and approved in the ‘Peoples Voice’ paper outlining activities, for example working with stakeholders, to ensure we hear the experiences of trans-people. This work is under development currently.

We also have a duty to monitor use of the Mental Health Act (MHA) in provider services. We continue to visit regularly all wards that treat detained patients, and we prioritise the wards to be visited, based on local intelligence, and the information we hold in relation to services, such as statutory notifications. Our primary focus is speaking to detained patients in their place of detention, and our revised methodology uses a combination of both on and off-site activities within a single MHA monitoring visit to facilitate this. We are working closely with the NHS England ‘Advancing Mental Health Equalities’ programme and to complement this are designing specific prompts for use on MHA visits which will help us to better understand how race, culture and other protected characteristics such as gender reassignment are impacting individuals’ experience of care under the Mental Health Act. We are also testing improved monitoring of trans status in our statutory notifications.

No known disparity has been identified.

Impact

In keeping with current advice provided on the impact of coronavirus on pregnancy and maternity.

At the time of writing, there is no evidence that pregnant women are more likely to get seriously ill from coronavirus. However pregnant women have been included in the list of people at moderate risk (clinically vulnerable) as a precaution. This is because pregnant women can sometimes be more at risk from viruses like flu. It's not clear if this happens with coronavirus. But because it's a new virus, it's safer to include pregnant women in the moderate-risk group. Latest evidence suggests that that it may be possible for pregnant mothers to pass coronavirus to their baby before they are born. But when this has happened, the babies have got better.

There is currently no evidence that coronavirus causes miscarriage or affects how a baby develops in pregnancy.

In terms of the impact of staff therefore, the risk of inequality is minimised.

Findings of an MBRRACE review into maternal deaths during COVID-19 found that all the women included in the review who died from COVID-19 were in the third trimester of pregnancy, and the majority were from Black or other minority ethnic groups. The review concluded that:

• Attention to social distancing in the later stages of pregnancy to prevent infection must remain the key intervention to reduce infection. Ensuring that this occurs without a withdrawal of essential antenatal and mental health care.
• Addressing the disparity in outcomes of COVID-19 among people from minority ethnic groups has already been established as a national and international priority and must be so for maternal services.
• Care of vulnerable women such as those subject to domestic violence must remain a priority.

Mitigation

This programme continues to monitor the latest evidence and guidance to assure that it is aligned with any change to COVID-19 safety guidelines. As such, the programme will routinely and frequently proactively monitor the situation and adapt and adopt any changes regarding coronavirus advice covering pregnancy and maternity arrangements.

Therefore in terms of the impact of staff, the risk of inequality is minimised as there is support from CQC for maternity leave and working from home arrangements that are currently in place.

In our regulatory work, we continue our work with the maternity equity strategy to look at positive interventions to reduce deaths of Black and minority ethnic women and babies.

We consider how we include other factors in the risk of death for pregnant women during pandemics in our regulatory approach to maternity services (for example, women with mental health conditions and women experiencing domestic violence).

Impact

The Office for National Statistics (ONS) Report “Coronavirus (COVID-19) related deaths by religious group, England and Wales: 2 March to 15 May 2020” is the latest Census 2011 based report published at the time of writing this equality impact assessment.

The highest age-standardised mortality rates (ASMRs) of deaths involving COVID-19 were in the Muslim religious group with 198.9 deaths per 100,000 males and 98.2 deaths per 100,000 females. People who identified as Jewish, Hindu or Sikh also showed higher mortality rates than other groups.

When taking account of region, population density, socio-demographic and household characteristics, and ethnic background, those who identified as Jewish at the time of the 2011 Census showed an increased risk of a death involving COVID-19 compared with the Christian population. Jewish males were at twice the risk of Christian males, with the difference in females being 1.2 times greater risk (additional data and analyses are required to understand this excess risk).

As evidenced above regarding the impact of COVID-19 on the UK population, this programme is aware that the risk of COVID-19 infection will continue to create an inequality, as there is a risk that the nature of COVID-19 can hinder on-site monitoring visits by CQC staff.

The programme has identified that using a remote regulatory method will affect our ability to meet and speak with people from a range of religious groups who use services. This may affect how we identify risk, inequality and hear their experience of care.

Mitigation

Inspectors and health professionals are routinely and frequently updated regarding areas of risk of infection, especially on reported population groups and local areas across the country where infection rate is still being reported as high. Where localised lockdowns occur, CQC is informed by care providers and local authorities regarding social distancing and restricted access to the known high-risk areas within the local area. In these circumstances, it has been agreed that this programme will adapt and adopt different forms of inspection engagement remotely and online, where the risk is too high for site visits.

CQC recognises the need to support people of all faiths and denominations, particularly at this time when many places of worship have been closed and are now re-opening, and that links between religious faith and community service are intertwined.

This programme, as part of CQC’s values, fully supports staff to set aside time for religious observation and obligations.

The monitoring approach policy guidance includes agreed key lines of enquiry to explore how the provider delivers safe, effective, caring, responsive and well-led treatment and care to patients and identify any risks. This includes the key line of enquiry to explore how services take account of the particular needs and choices of different people, how people are supported to stay safe, and how a provider ensures there is a culture of high-quality, sustainable care, including how the health, safety and wellbeing of staff is protected.

It is important that we hear the experiences of members of religious groups who use services. In the absence of visiting services and meeting people, much of this work will be done remotely using telephone and video conference methods. A methodology was proposed and approved in the ‘Peoples Voice’ paper outlining activities, for example working with stakeholders, to ensure we hear the experiences of religious groups. This work is under development currently.

In our Mental Health Act (MHA) monitoring methodology, we ask providers how they are supporting the cultural and religious needs of patients who are detained. We will continue to interview patients who are detained during our MHA monitoring visits to understand their experience and ask providers to take action to improve when necessary, and this will be enhanced through the work we are doing to design specific prompts for use on MHA visits which will assist us in our understanding of how race, culture and other protected characteristics impact on individuals’ experience of care under the MHA.

Impact

Some lesbian, gay and bisexual (LGB) communities are disproportionately affected by COVID-19. For example, for some older LGB people, accessing basic provisions such as their medication is difficult without their support networks. Read How COVID-19 is affecting LGBT communities (Stonewall).

The programme is aware that the risk of infection from COVID-19 will continue to create an inequality, as there is a risk that it can hinder on-site monitoring visits by CQC staff.

The programme has identified that using a virtual regulatory method will affect our ability to meet and speak with people from a range of LGB communities, including disabled people who use services. This may affect how we identify risk, inequality and hear their experience of care.

Mitigation

The monitoring approach policy guidance includes agreed key lines of enquiry to explore how the provider delivers safe, effective, caring, responsive and well-led treatment and care to patients, and identify any risks. This includes the key line of enquiry to explore how services take account of the particular needs and choices of different people, how people are supported to stay safe, and how a provider ensures there is a culture of high-quality, sustainable care, including how the health, safety and wellbeing of staff is protected. This also includes asking a provider how they take account of the particular needs and choices of different people to mitigate risk when delivering care.

It is important that we hear the experiences of members of LGBT communities who use services. In the absence of visiting services and meeting people, much of this work will be done remotely using telephone and video conference methods. A methodology was proposed and approved in the ‘Peoples Voice’ paper outlining activities, for example working with stakeholders, to ensure we hear the experiences of LGBT communities. This work is under development currently.

• Public statements being published on the CQC internet site may not be easily accessible for people who do not have internet access or IT skills; or may not understand what the new approach aims to do.
• Scoring system and priorities may result in equality and diversity issues raised.

• The CQC National Customer Service Centre will receive training to support members of the public enquiring about the programme.
• Inspectors will be trained in how to respond.
• External communication will provide details on the changes to CQC Monitoring Approach.
• Feedback on Care contact details are available to all and is integrated in the public statement.
• We tested the public statement with a group of people and providers. As a consequence, this was amended.

We have also identified the following five cross cutting risks:

1. Insufficient focus on people’s voice in monitoring activity –compared with the voice of providers. We know that gathering views of people who use services is essential to identify human rights risks –including closed cultures. This has always been a risk but is increased when ‘monitor’ activity is used to drive inspection frequency, as it cannot be mitigated by increasing engagement with people who use services at inspection. (However, all systems of triggering inspections can have this risk, including previous ratings.) Also, this risk may be greater for groups of people who find it harder to use our existing ways of providing feedback, for example disabled and older people with communication or cognitive impairments and people who do not speak English. The Direct Monitoring Approach builds on the approach taken for the Emergency Support Framework and the Transitional Monitoring Approach (TMA). The findings of an evaluation of the TMA reinforce this risk –in that there was a lack of evidence from people who use services in the monitoring tool to make decisions about regulatory action required for a service and inspectors were not always mitigating this risk by gathering more information.
2. Slimmed down set of key lines of enquiry (KLOEs) used in monitoring tools is focused on safety, access and leadership could lead to equality and human rights issues being missed if they do not fall within this remit, or if there are specific issues for specific service types. Note that full set of KLOEs will be available on inspection, though most inspections will be focused rather than comprehensive and therefore will be based on the risks in the monitoring tools. Also that where we have evidence of any regulatory breach, we will continue to consider action required, regardless of whether this is contained within the monitor phase KLOEs. A quality improvement project looking at equality content in a sample of TMA calls showed that there was little recording of equality issues in TMA calls, despite work to get the right content into the TMA frameworks (only 4 of 64 call notes sampled mentioned any equality issues). It is vital to continue to build on learning from DMA calls in the monitoring approach.
3. Scoring system for decisions may result in equality and human rights issues not being taken further if overall risk score is low. This could mean it is difficult to tackle specific human rights or inequality issues and therefore to meet Public Sector Equality Duty and human rights/Mental Capacity Act /National Preventive Mechanism duties
4. Need to build learning from restraint, segregation and seclusion review into assessment tool –also some specific Deprivation of Liberty Safeguards (DoLS) and Mental Health Act issues need resolving, also auto-populating key data, for example mortality and NRLS.
5. Process of monitoring approach development is rapid and iterative – this can mean that equality and human rights risks are missed or that they are inserted into the tools but then removed (for example in user testing).

All the mitigations for the six cross-cutting risks are given in the action plan in section 5.

Impact

CQC’s duties as the designated National Preventive Mechanism for deprivation of liberty across health and social care in England require us to carry out regular visits to places of detention in order to prevent torture, and other ill-treatment.

During the first COVID-19 lockdown, in March 2020, National Preventive Mechanisms (NPMs) around the world agreed that the first principle of their activity –do no harm–would mean that physical visits to places of potential detention could be suspended if these would pose a risk of spreading infection that could not be otherwise managed.

However, from April 2020 we re-instated Mental Health Act (MHA) monitoring through digitally enabled contact with individual mental health wards, where we spoke to staff, patients, carers and advocates by telephone or video conference. Examples of how this assisted us in our NPM function, include, for example, some wards managers providing a virtual tour of the ward with their tablet computer held face outwards, so that the MHA reviewer could both see and communicate with any person encountered, and see the ward environment.

Mitigation

There were some aspects of our remote monitoring that we found improved our practice, and will continue after we return to on-site visits. For example, remote visits have facilitated a greater degree of contact with carers and families of detained patients, and with Independent Mental Health Act Advocates. As the first lockdown eased, we restarted on-site MHA monitoring visits in cases of concern, using personal protective equipment (PPE). Throughout the pandemic, where we have had specific and urgent concerns, Mental Health Act reviewers have been engaging with services and have carried out on-site visits alongside CQC regulatory inspectors.

It should be noted that our work as an NPM has been reflected pre-pandemic in a rolling programme of physical site visits to places where people are or may be detained under the Mental Health Act (generally but not only mental health hospitals) or deprived of their liberty under the Mental Capacity Act Deprivation of Liberty Standards (care homes and hospitals of all types). This affords the opportunity to examine the conditions of the place of detention and also to interview people who are deprived or at risk of being deprived of article 5 rights.

Freedom from inhumane or degrading treatment

This programme does not infringe or impact on the human rights or civil liberties of CQC staff.

Read general comments about the impact of this programme on CQC’s work as an NPM.

Impact

NPM visits encompass our work in monitoring the application of the Mental Health Act and Mental Capacity Act Deprivation of Liberty Standards. Both of these are legal mechanisms designed to establish lawful deprivation of the right to liberty

Mitigation

Read general comments about the impact of this programme on CQC’s work as an NPM above, and the mitigation through continuing physical site visits. Also, see specific comments regarding Mental Capacity Act and Deprivation of Liberty Standards in the cross-cutting equality issues.

Impact

During the first wave of COVID-19 we did identify some actions by some providers that may have had an impact on disabled and older people’s Article 8 rights, for example to be consulted on Do Not Attempt Resuscitation decisions, and sometimes disproportionate restraint to achieve social distancing, though we do not have a legal judgement on these actions.

NPM visits are preventative, and therefore concerned with any potential infringement of human rights as a marker for potential inhuman or degrading treatment, or even torture. It is a matter of degree: severity and duration (for example) could make a practice that would otherwise be a justifiable interference with Article 8 rights to bodily autonomy into something that was an unjustified infringement of that right, or even an infringement of the right to freedom from torture or inhuman or degrading treatment.

Mitigation

This methodology gives an opportunity to include areas of Article 8 concern in our Key lines of Enquiry (KLOEs). Key issues, for example around Do Not Attempt Resuscitation decisions and social distancing and visiting have been incorporated into key lines of enquiry and prompts.

Read general comments about the impact of this programme on CQC’s work as an NPM above, and the mitigation through continuing physical site visits.

Read comments about specific risks for older and disabled people (including people with mental health conditions) in relation to other rights.

The Programme Learning Pack will be:

• designed to be accessible outside of normal working hours
• designed to be fully accessible and compatible for tools and applications such as Dragon and immersive reader.

Action owner: Implementation Team. Timescale: 10 June 2021. Date completed: 7 June 2021

The communication plan will include external and internal stakeholders. The CQC NCSC will receive a dedicated session regarding the programme. Feedback on Care contact details are to be included as part of the public statement.

Action owner: Comms Team and Implementation Team. Timescale: 10 June 2021. NCSC Session 8 June 2021. Public Statement confirmed to include Feedback on Care.

For CQC staff: Mitigating potential health inequalities that are known regarding COVID-19 infections, for CQC staff through our people policies including individual risk assessments.

Action owner: Diversity and Inclusion Manager. Timescale: Ongoing.

Cross cutting risk 1: Address potentially insufficient focus on people’s voice in monitor (compared to the voice of providers)

Where there is a lack of existing evidence of people’s experience of care, inspectors must gather up-to-date information about this as part of the DMA.

• New DMA guidance states; Where we are proceeding with a DMA call but there is little or no recent evidence (last 6 months) about peoples’ experiences of care, planning must include how we will gather more evidence about this. And also states:
• Where we cannot make a reliable assessment of risk because of lack of information about people’s experiences of care, we will consider whether an inspection is required, even where no DMA KLOE has a score of 1, 2 or 3.

Action owner: Policy team responsible for DMA guidance. Timescale: July 2021. Date completed: 10 July 2021.

Develop Quality Management in Adult Social Care, Primary Medical Services and Hospitals to check and ensure the quality of DMA decision making in our assessments of the quality and safety of care. This includes checking how people’s experiences have been used and that the requirement above in relation to the sufficiency of evidence of people’s experience of care is carried out in practice.

Action owner: Operations Assurance Manager (Primary Medical Services) / Inspection Manager (Primary Medical Services) / Operations Assurance Manager (Adult Social Care) Independent Health Implementation Manager (Hospitals). Timescale: August 2021. Date completed: 2 August 2021.

Increase feedback from equality groups, the following are being considered in Regulatory model development programme

• Carry out piloting of different approaches to increase the feedback from people who use services (as part of People’s Experiences workstream of Reg Model Development programme)
• Pilot closer working with advocacy groups
• Pilots of improved local cross sector engagement by local teams with LHW, voluntary and community sector organisations
• Pilots of new Experts by Experience services working with trusted intermediaries
• Give Feedback On Care campaign focussing on people with a learning disability and autistic people.

Action owner: Head of Public Engagement / Deputy Chief Inspector (for services for people with a learning disability and autistic people). Timescale: Ongoing.

Improving accessibility of existing feedback processes

Deliver a video relay service to enable Deaf people using BSL to engage with our customer centre and develop accessibility for people speaking languages other than English.

Complete learning for customer services colleagues to improve support for people with a learning disability and autistic people who contact our customer support centre.

Action owner: Head of Contact NCSC / Customer Engagement and Improvement Lead. Timescale: August 2021. Date completed: 10 August 2021.

Consider whether additional development of NCSC processes and Give feedback on care online is required to capture equality characteristics of people, using work from Notifications Improvement project on equality monitoring as a basis.

Action owner: Head of Contact NCSC / Head of Public Engagement. Timescale: Ongoing.

Build learning from DMA approaches into Longer term development of regulatory framework workstream on how we gather and respond to people’s experiences.

Action owner: Area-level Analytics Manager / Head of Public Engagement / Senior Project Manager -Strategic Planning. Timescale: To be included in Regulatory Platform and New Regulatory Approach Programmes.

Enable the results from engagement with people who use services and staff to be factored into the risk levels decided by inspectors and work to identify the automated solutions that enable the views of staff and people who use services to form part of statistical or advanced models.

Action owner: Area-level Analytics Manager / Head of Provider Analytics - Primary Medical Services. Timescale: To be included in Regulatory Platform and New Regulatory Approach Programmes.

Explore whether the views of people who use services (for example through Healthwatch or engagement with people in a sample of services) and staff could verify the risk levels that come from the DMA approach.

Action owner: Equality, Diversity and Human Rights Manager / Quality Assurance team. Timescale: December 2021.

Assess the extent to which we have heard and are actively using the voices of different equality groups.

Action owner: Director Implementation and Improvement, Adult Social Care. Timescale: To be included in any evaluation of DMA.

Cross cutting risk 2: Slimmed down set of KLOEs used in monitor phase.

Ensure final KLOE set for each sector or service type adequately covers all relevant equality and human rights issues required in monitor phase, including those related to closed cultures and produce guidance where required on specific equality and human rights issues.

Action owner: Equality, Diversity and Human Rights Manager. Timescale: July 2021. Action completed: 3 August 2021.

Cross-cutting risk 3: Ensure Scoring system for decisions results in equality and human rights issues being taken further when needed, if overall risk score is too low.

• More details about equality and human rights related indicators used in risk banding are given in Appendix A.
• The DMA guidance includes: Where there are equality, diversity and human rights issues, inspectors will take into account our public sector equality duty when considering the need for a regulatory response.
• Human Rights risks are threaded throughout the descriptions of risk levels – for example “High risk” includes in the definition that “Disproportionate restrictions of liberty or breaches of human rights are probable”.

Action owner: Equality, Diversity and Human Rights Manager. Timescale: July 2021. Action completed: 3 August 2021.

• Ensure that the DMA assessment includes a review of inherent risk factors and warning signs for all services (as set out in the Closed Cultures guidance) and is prioritised for intelligence and evidence requirements for the tool.
• There is a separate section in the DMA guidance for inspectors which prompts inspectors to check Closed cultures guidance in relation to DMA evidence.
• Note that the following data items are included in the risk model: complaints and information about notifications which include safeguarding, whistleblowing, police incidents and deaths in detention, more details in Appendix A.

Action owner: Delivery and Development Manager / Head of Provider Analytics - Hospitals. Timescale: Initially July 2021.

Consider adding additional equality and human rights indicators from information from Adult Social Care Provider Information returns into the risk model Appendix A).

Consider adding additional equality and human rights indicators into the IH risk model (Appendix A)

Action owner: Head of Provider Analytics - Hospitals / Equality, Diversity and Human Rights Manager. Timescale: December 2021.

Consider adding additional equality indicators into the GP practice risk model.

Action owner: Head of Provider Analytics - Primary Medical Services / Equality, Diversity and Human Rights Manager. Timescale: December 2021.

Consider findings of the QI work into equality content in inspection reports when available, to see if this provides learning for future iterations of monitoring tools.

Action owner: Manager - Hospitals / Equality, Diversity and Human Rights Manager. Timescale: October 2021

Cross cutting risk 4: Ensure Restraint, segregation. seclusion learning and MHA/MCA/DoLs issues are incorporated into the Framework and tools and carry out evaluation against these in practice and improve if necessary. Read Appendix A for existing coverage.

Action owner: Delivery and Development Manager / Regulatory Policy Manager / Mental Health Act Policy Manager. Overall action owner: Interim Head of Mental Health Policy. Timescale: December 2021.

Cross cutting risk 5: Ensure the rapid process of monitoring approach development does not miss out on equality and human rights risks; make sure they are inserted into the tools and stay there. Ensuring any future changes to the DMA or the risk models have EIAs attached before changes are agreed.

Action owner: Director Implementation and Improvement - Adult Social Care / Director of Intelligence. Timescale: as required.

Build into our assessment frameworks and methods key equality issues around access to and outcomes from care that we have learned through COVID-19, such as issues for Black or Minority Ethnic groups, older people and disabled people including right to life issues.

Action owner: Head of Primary Medical Services Policy (policy lead for regulatory transition programme) / Equality, Diversity and Human Rights Manager. Timescale: July 2021.

Align our engagement and assessment tools with national expectations around equality, health inequalities and human rights such as those in the NHS phase 3 response. Support NHSEI to produce new guidance for inspectors on aligning well-led assessments with health inequalities priorities.

Action owner: Equality, Diversity and Human Rights Manager / Regulatory Policy Manager, Strategy. Timescale: July 2021. Date completed: July 2021.

In MHA monitoring, continue to develop our approaches to gathering the views of people detained under the MHA, using a mix of virtual and on-site approaches.

Action owner: Mental Health Act Policy Manager / Head of Mental Health Policy. Timescale: Ongoing.

In MHA and MCA DoLS monitoring; Ongoing liaison with NPM administration/membership around the approaches that we are using.

Action owner: Head of Mental Health Policy / Regulatory Policy Manager / National Mental Health Act Policy Advisor. Timescale: Ongoing.

Complete review of our MHA well-led methodology to include a focus on how provider’ services are overseeing the use of the MHA, understanding how it affects particular equality groups and what actions are being taken to improve the patient experience. This will include a particular focus on the experience of Black or Minority Ethnic groups through the Advancing Mental Health equality work.

Action owner: Mental Health Act Policy Manager / Head of Mental Health Policy. Timescale: Ongoing.

Build virtual engagement with the people using services with a DoLs authorisation and their representatives (for example Legal Power of Attorney holders or Relevant Person’s representatives) supported by Experts by Experience.

Action owner: Regulatory Policy Manager. Timescale: Ongoing

Ensure numbers of notifications of outcomes of DoLS applications sent to CQC are monitored at strategic level.

Action owner: Regulatory Policy Manager. Timescale: Ongoing.

Assess whether aggregated DMA app data could be used to report nationally on equality and human rights risks.

Equality, Diversity and Human Rights Manager. Timescale: Dec 2021.

Q1. What quantitative data items within the Information review relate to equality and human rights risks for people using services?

The IH model includes 16 indicators for each location, the indicators are all derived from CQC held data sources. Four of the 16 indicators are derived from notifications CQC receives and equality and human rights issues are potentially included, depending on the nature/ content of them, see table below. Read Appendix B.

NHS Hospitals model currently in development, target date end December 2022.

Q2. How are these weighted?

No weighting is included for the indicators that potentially are relevant to equality and human rights issues.

Q3. Comparing this to our regulations, what equality and human rights aspects of the regulations are not covered by data items in the information review – and how are risks associated with this mitigated?

• Reasonable adjustments for disabled people
• Consider whether any Provider Information Return responses could be added
• Also consider adding completeness of ethnicity coding in patient datasets as a proxy measure and national priority.

Q4. How is qualitative information from people who use services, that might indicate equality and human rights risks weighted in the model?

The content of notifications is made available to inspectors.

Q1. What quantitative data items within the Information review relate to equality and human rights risks for people using services?

With regard to the ASC Residential Direct Monitoring Approach prioritisation scores model (DMA); this model makes use 78 different parameters to calculate prioritisation scores to help inspectors prioritise higher risk (including potential human rights risks). This model includes numerous variables used in the both the IHS and Community data models. In the interest of keeping this communique as concise as possible I have categorically grouped variables listing only those that are relevant to the discussion on equality and human rights. Also read Appendix C.

Additionally, the model contains numerous measures that can be thought of as “proxy variables” i.e. variables that may indirectly be indicative of equality and human rights issues. The model captures characteristics of locations that have been thought to typify “closed” cultures, including measures implying the relative isolation of the service, the facility type (Live-in services such as shared lives/ supported living services are thought to be higher risk), changes in registration or the size of the provider to reflect market changes.

Q2. How are these weighted?

This model is not specifically built to capture measures of inequality, however comparatively high counts of injury, unexpected deaths, abuse, safeguarding and whistleblowing notifications are strong indicators of potential human rights violations. Weighted averages mean that both statistically significant under and over reporting of these variables are likely to alert inspectors to issues that may amount to serious human rights risks.

Q3. Comparing this to our regulations, what equality and human rights aspects of the regulations are not covered by data items in the information review – and how are risks associated with this mitigated?

• Meeting people’s individual needs based on equality characteristics (for example, cultural or spiritual needs)
• Reasonable adjustments for disabled people
• Consider adding Provider Information Return responses to equality questions into future iterations of the model.

Q4. How is qualitative information from people who use services, that might indicate equality and human rights risks weighted in the model?

As indicated above this model is a quantitative predictive scoring model and simply counts pieces of qualitative information received (including complaints, whistleblowing and safeguarding alerts).

As above and Appendix D

Q1. What quantitative data items within the Information review relate to equality and human rights risks for people using services?

Three of the measures are derived from enquiries CQC receives and equality and human rights issues are potentially included, depending on the nature/ content of them, read Appendix E.

Q2. How are these weighted?

No weighting is included for the measures that potentially are relevant to equality and human rights issues.

Q3. Comparing this to our regulations, what equality and human rights aspects of the regulations are not covered by data items in the information review – and how are risks associated with this mitigated?

• Access issues for particular groups of people who may face barriers to accessing primary medical care, such as homeless people, vulnerable migrants, gypsies and travellers - continue work with advocacy organisations representing these groups to increase feedback where access issues have been experienced.
• Also consider adding completeness of ethnicity coding in patient datasets as a proxy measure and national priority.
• Reasonable adjustments for disabled people – check whether any indicators available and suitable, for example GP survey.

Q4. How is qualitative information from people who use services, that might indicate equality and human rights risks weighted in the model?

The content of notifications and enquiries is made available to inspectors.

The independent doctors DMA dashboard also provides links to ‘Give feedback on comments’ where inspectors will be able to access the detail of the comments which may include issues of whether equality or human rights are raised.

Quantitative data items which relate to equality and human rights risks for people using services:

Quantitative data items which potentially relate to equality and human rights risks for people using services, depending on the nature/content of the notification:

Quantitative data items which do not relate to equality and human rights risks for people using services:

1. an assessment of the volume of notifications received for deaths in detention
2. an assessment of the volume of notifications received for unauthorised absence
3. an assessment of the volume of notifications received for the admission of a child to an adult psychiatric unit
4. abuse.
5. complaints
6. safeguarding
7. police incidents
8. whistleblowing
9. overall sector wide risk associated with that location (taken from IH risk assessment)
10. whether the location has never been inspected and if so how long have they been registered
11. If they have been inspected, what the final rating is
12. whether a registered manager is in place
13. an assessment of the volume and pattern of notifications received for:
14. serious injuries
15. unexpected deaths
16. events that stop service

Qualitative data items are currently not weighted.

Our model includes an exponentially weighted mean of police notifications with older values weighted less. This captures sudden increases or decreases in police notifications over the last one, two or three months.

This approach applies to the following variables:

For Give Feedback on Care:

Weighting: The average subjectivity levels of Give Feedback on Care comments received in the past 12 months

For Closed Cultures variables:

Weighting: Model includes an exponentially weighted mean of DOLS notifications with older values weighted less.

This approach applies to the following variables:

1. 12-month count and 4-month rate of change of police notifications
2. 12-month count and 4-month rate of change of injury
3. 12-month count and 4-month rate of abuse notifications
4. 12-month count and 4-month rate of whistle Blowing (WB) alerts
5. 12-month count and 4-month rate of safeguarding (SG) alerts
6. 12-month count and 4-month rate of stakeholder complaints
7. 12-month count and 4-month rate of unexpected deaths.
8. Give Feedback on Care 12 month count of negative comments, Also average sentiment, negativity.
9. ONS sparse rural town
10. 12-month count and 4-month rate of change DOLS notifications
11. local area % of persons with learning disability living at home
12. indicator for whether location regulated activity exactly covers accommodation
13. 12-month change in provider size and changes in registration.

Our model includes a count of and associated threshold for the scoring. These might include equality and human rights issues. This approach applies to the following variables:

For Give Feedback on Care:

Weighting: Count of Bad Experience enquiries. Could contain equality and human rights content.

Variable:

For Domain ratings

Weighting: Ratings for domains, particularly Well-led, Caring and Responsive would use equality and human rights findings within the rating.

Variable:

1. 12-month count of police notifications
2. 12-month count of serious Injury
3. 12-month count of abuse notifications
4. 12-month count whistle blowing (WB) alerts
5. 12-month count of safeguarding (SG) alerts
6. 12-month count complaints
7. 12-month count deaths
8. Give Feedback on Care 12 month count of negative comments
9. Domain ratings

Quantitative data items which relate to equality and human rights risks for people using services:

• None

Quantitative data items which potentially relate to equality and human rights risks for people using services, depending on the nature/content of the notification:

Quantitative data items which do not relate to equality and human rights risks for people using services:

1. whistleblowing
2. safeguarding
3. complaints
4. prevention (6 indicators) (GPs only)
5. patient experience (5 indicators) (GPs only)
6. access (4 indicators) (GPs only)
7. notifications (Independent doctors and urgent care only)
8. current rating
9. breaches
10. registered manager in place
11. risk register
12. time since last rating/site visit/registration date
13. diagnostic (1 indicator) (GPs only)
14. disease management (9 indicators) (GPs only)
15. IUC KPI data (Urgent care only)

Three items are weighted:

• current rating x 2
• risk register x 1.5
• time since last rating / site visit / registration date x 1.5

Other qualitative data items are currently not weighted.