Memorandum of understanding between CQC and the Equality and Human Rights Commission
Introduction
1. This Memorandum of Understanding (MoU) sets out the framework that supports the work of the Care Quality Commission (CQC) and the Equality and Human Rights Commission (EHRC), increasing the effectiveness of both organisations through a strategic partnership, in order to safeguard the wellbeing and rights of the public receiving health and social care in England. CQC and the EHRC recognise that their roles are distinct, but work may cover common ground and address similar themes. This MoU reflects the current working relationship and promotes ongoing liaison and cooperation between both organisations.
2. CQC is the independent regulator of health and social care in England. CQC makes sure health and social care services provide people with safe, effective, compassionate, high-quality care and encourages services to improve. CQC ensures that services meet fundamental standards of quality and safety in line with the Health and Social Care Act 2008 and associated legislation.
3. The EHRC is the regulator responsible for enforcing the Equality Act 2010. It safeguards and enforces the laws that protect people's rights to fairness, dignity and respect. It uses unique powers to challenge discrimination, promote equality of opportunity and protect human rights across Great Britain.
Scope and status
4. This MoU does not override the statutory responsibilities and functions of CQC and EHRC and is not enforceable in law. However, CQC and the EHRC are committed to working in ways that are consistent with the principles of this MoU.
5. Nothing in this MoU is intended to, or shall be deemed to, establish any partnership or joint venture between the organisations, constitute either organisation as the agent of the other organisation, nor authorise either of the organisations to make or enter into any commitments for or on behalf of the other organisation.
Principles of cooperation
6. CQC and the EHRC will work together on the following principles set out below. In particular, all decisions about collaborative working between CQC and EHRC will be subject to the following general principles:
- each Party will respect each other’s independent status and will cooperate when necessary or appropriate
- the working relationship will be governed by the need to deliver maximum benefits to those using health and adult social care services
- the Parties will work together in undertaking their respective functions when this contributes most to improvements in health and adult social care services
- the Parties will work together to encourage the development of consistent, high quality, accurate information and will rely on the best available data to focus and support their work together and
- the Parties will be open and transparent in their decisions about when and where it is considered appropriate for them to work collaboratively.
Areas of cooperation
7. Subject to mutual agreement and availability of resource in each organisation, such cooperation may be appropriate in some or all of, but not limited to, the following key areas:
- areas of mutual regulatory interest
- sharing knowledge and expertise
- joint inquiries or research projects
- cooperation on stakeholder activities (potentially joint events)
- cooperation on advice, guidance and policy
- joint external communications (for example, joint government responses, statements or trade press articles)
- cross referral of concerns
- signposting of complaints
- signposting of advice and guidance of each other’s regulatory responsibility on each other’s websites
- commissioning of research and reviews of research and
- feedback and contributions to annual reporting.
Levels of cooperation
8. Quarterly meetings will be scheduled between the respective leads of this MoU or their representatives. Prior to each meeting, the information to be shared will be exchanged for discussion at the meeting together with any issues relating to equality and human rights arising over the previous quarter.
9. The working relationship between CQC and EHRC will be characterised by regular contact, transparent and open exchange of information, including formal and informal meetings at appropriate levels. The relevant officials at CQC and the EHRC will keep this working relationship under review.
The Regulator’s Code 2014
10. Paragraph 4.2 of the Regulator’s Code 2014 provides that when the law allows, regulators should agree secure mechanisms to share information with each other about businesses and other bodies they regulate, to help target resources and activities and minimise duplication. Relationships with other regulators is one of the strategic priorities of the EHRC and it seeks greater alignment with CQC on areas of mutual interest.
11. In line with the Regulator’s Code and the Parties’ respective regulatory functions, the Parties may share information with each other in relation to bodies they regulate including but not limited to the Public Sector Equality Duty.
Public sector equality duty
12. Since 5 April 2011 the Equality Act 2010 has introduced a single general public sector equality duty (PSED) which applies to public authorities and others who may be exercising public functions. Under section 149 of the Equality Act 2010 as part of the PSED, public authorities are required to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010; advance equality of opportunity between people who share a protected characteristic and those who do not; and foster good relations between people who share a protected characteristic and those who do not.
13. CQC recognises that in the exercise of its public functions it must have due regard to the PSED and the Equality Act 2010. CQC must also have due regard to the PSED where they relate to CQC’s regulation of health and social care providers in England. The PSED extends to those whom CQC regulates where those registered providers exercise a public function, and the requirements of the Equality Act 2010 more generally extend to all registered providers.
14. Whilst CQC has no direct enforcement powers in relation to the PSED or the Equality Act 2010, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 are closely aligned with the Equality Act 2010, and any action by CQC will always consider the impact on people using services. In addition, leadership on equality is included in how CQC assesses compliance with fundamental standards of quality and safety and whether services are well-led. Leadership on equality therefore also contributes to overall ratings in the key question of well-led.
Freedom of Information Act 2000
15. Both organisations recognise their responsibilities under the Freedom of Information Act 2000. Where either organisation receives a request under the Act for information received from the other, both organisations agree to take reasonable steps to consult on the proposed disclosure and the application of exemptions but recognise that the responsibility for disclosure lies with the organisation that received the request.
Intellectual property
16. The Parties intend that any intellectual property rights created in the course of the project shall vest in the party whose employee created them.
17. Where any intellectual property right vests in either party in accordance with the intention set out in paragraph 15 above, that party shall grant an irrevocable licence to the other party to use that intellectual property.
Complaints handling, advice and guidance procedures
18. There may be occasions when one organisation may identify information which may be of interest to the other organisation and may be suitable for sharing. Where such instances occur the appropriate route for sharing of information shall be as follows:
a) CQC - The MoU lead at CQC will receive information from EHRC. If this relates to a specific registered health or social care provider or location, it will be passed to the relevant inspector. If it relates to a policy issue, it will be passed to the relevant policy team. Information will be shared with EHRC in accordance with CQC information sharing policies and guidance.
b) EHRC - The MoU lead at the EHRC will receive information from CQC. If this relates to an identified potential breach of the Equality Act 2010 or Human Rights Act 1998 it will be passed to the EHRC legal request triage inbox. If it relates to a policy or other compliance issue, it will be passed to the relevant team. Information will be shared with CQC in accordance with EHRC information sharing policies and guidance.
19. Each organisation will, on request, provide assistance to the other on matters within its remit, subject to the availability of resources and the absence of conflict with the functions of the organisation requested to provide such assistance. Such assistance would not obviate the need for each organisation to seek its own legal opinion or give due regard to the PSED in its own policies and reports where necessary. The assistance provided by one organisation to another will not constitute legal advice.
Information sharing arrangements
20. CQC and EHRC both have statutory powers of investigation and enforcement under their respective legislation. CQC and EHRC aim to cooperate by sharing information where it is judged to be helpful to one another in fulfilling their respective functions, subject to any restrictions on disclosure of information in which are necessary to ensure compliance with the law.
21. CQC and EHRC will ensure timely and focussed exchange of relevant information that enables effective co-ordination and cooperation in the areas outlined in this MoU.
22. In this MoU ‘Data Protection Legislation’, ‘data subject(s)’, ‘personal data’, ‘process’, ‘processed’, and ‘processing’ shall have the meanings set out in and will be interpreted in accordance with the General Data Protection Regulation and the Data Protection Act 2018.
23. Both organisations recognise that processing of personal data (including sharing of personal data) must be carried out in accordance with the General Data Protection Regulation (GDPR), Data Protection Act 2018 (DPA) and section 76 to 79 of the Health and Social Care Act 2008, The Human Rights Act 1998, and all relevant legislation relating to these matters and respective codes of Practice, frameworks or other policies relating to confidential personal information and information issues. Both organisations agree that the sharing of personal data will be considered on a case-by-case basis and carried out in a manner consistent with the Data Sharing Code of Practice publishing by the Information Commissioner’s Office.
24. Specifically, this includes each organisation shall comply with its obligations to report a personal data breach to the ICO and (where applicable) data subjects under Article 33 of the GDPR and wherever reasonable and practicable shall inform the other organisation of any personal data breach relating to shared personal data under this MoU.
25. The organisations agree to provide reasonable assistance as is necessary to each other to facilitate the handling of any personal data breach in an expeditious and compliant manner.
Resolution of disputes
26. The Parties agree to resolve any disputes arising from this MoU informally and promptly, in the first instance, by the officers who have operational responsibility for this MoU.
27. If the dispute cannot be resolved informally within a reasonable period of time, the dispute shall be escalated to senior officers, up to, and including the Chief Executive Officers. The Chief Executive Officers shall be jointly responsible for ensuring a mutually satisfactory resolution.
28. If either party receives any formal inquiry, complaint, claim or threat of action from a third party (including, but not limited to, claims made by a supplier or requests for information made under the Freedom of Information Act 2000) in relation to this MoU or work carried out under it, the matter shall be promptly referred to the Chief Executives and/or Board (or its nominated representatives). No action shall be taken in response to any such inquiry, complaint, claim or action, to the extent that such response would adversely affect the Parties, without the prior approval of the Chief Executives and/or Board (or its nominated representatives).
Publication
29. CQC and EHRC agree the other may publish this MoU on their respective websites.
Duration and review
30. This MoU commences on the date of the signatures below. It is not time-limited and will continue to have effect unless the principles described above need to be altered and/or cease to be relevant.
31. This MoU will be reviewed every two to three years but may be reviewed at any time at the request of either party. However, any alterations to the MoU will require both parties to agree.
32. This MoU may only be varied by written agreement of the organisations. Either organisation may terminate this MoU by giving at least three months' notice in writing to the other organisation at any time.
Contacts
33. Both organisations have identified a person responsible for the management of this MoU (known as ‘Relationship Leads’) and their contact details are set out in Annex 1.
Signatures
Original document signed by:
Ian Trenholm
Chief Executive
Care Quality Commission (CQC)
Alastair Pringle
Executive Director, Legal, Compliance and Scotland
The Commission for Equality and Human Rights
Date: 9 March 2021
Annexes
Annex 1: Contact details for all parties
This annex is only available as part of the original document.