New versions of CQC guidance on “Disclosure of Information to Providers” and “Sharing Information” reveal a worrying shift in CQC’s stance regarding disclosure of inspection notes to providers.
In relation to such requests, the 2015 Sharing Information guidance stated:
“Providers may consider that they need to receive this information from CQC in order to be able to effectively challenge the factual accuracy of our reports, or so that they can decide whether to challenge CQC’s actions and judgments.
In the interests of fairness and transparency, we should disclose this information to providers unless there is a good reason not to.”
The 2017 version states:
“Providers may hold the view that they need to receive information from CQC in order to better understand CQC’s actions and judgments. This does not mean that we should automatically comply with such requests.
That said, in the interests of fairness and transparency, we may need to disclose some specific information to providers unless there is a good reason not to. This extends to information contained within documents we hold, but does not mean we will be able to provide the documents themselves, such as full inspection notes or inspection information.”
This is a very worrying shift from a presumption in favour of full disclosure, to one where providers will have to request specific targeted information from the notes. The reason given by CQC is the increased numbers of requests for notes and the burden that this places on them to collate and redact them.
With regard to this burden, one would expect that the notes ought to have been collated for the purposes of the preparation of the draft report and as such should be readily available so that they could be disclosed without difficulty. In relation to redactions, CQC is not required to hold most information, for example names of service users, in confidence from a provider. Only the names of those individuals that have explicitly stated that they want their names to be kept confidential would require redaction and we submit that these types of scenarios would be exceptional.
The updated Sharing Information Guidance provides:
“It is no longer routine that we will share copies of the full (redacted) notes, due to the number of providers requesting these. Therefore providers should be encouraged to ask for specific information relevant to their concerns, rather than a copy of all the notes.”
CQC have stated that this will allow CQC to be transparent about the “gist” of their findings and allow providers to submit a more effective challenge should they disagree with the findings. This is completely unsatisfactory. Firstly, without knowing the content of the inspection notes it is impossible for providers to make a properly targeted response for their disclosure. Secondly, providing transparency about the “gist” of findings is just not good enough.
In the interests of procedural fairness and transparency, it is fundamental that the provider is absolutely clear about the nature of the case being put forward in the draft report about their service. This is necessary to enable them to investigate matters thoroughly if required and also to permit them to provide comprehensive factual accuracy comments. The consequences of inaccurate reporting can be extremely costly to the reputation and commercial interests of a provider. Furthermore, with the introduction of increased intervals between inspections through the new strategy, providers are at risk of being left with an unsatisfactory report for up to 12 or 24 months before they are re-inspected.
What remains unchanged is that section 79(3)(f) of the Health and Social Care Act 2008 lawfully permits disclosure of information by CQC for the purpose of facilitating the exercise its statutory functions. It is a voluntary disclosure in relation to which CQC can exercise its discretion. As a public body, CQC must approach their decisions in this regard in a rational reasonable manner.
The fact that CQC have adopted this new stance in their guidance should not be a bar to providers requesting notes if they consider that they are necessary to allow them to decide whether to challenge CQC’s judgments. This is particularly so in light of the proposals under CQC’s new strategy that reports will become shorter and quicker to produce and publish. We forsee that in these circumstances lack of detail in draft reports will become even more of a problem for providers and the inspection notes will be vital to enable providers to respond appropriately to the reports.
CQC say they remain committed to being open and transparent with providers and that they will always look to provide explanation and information to providers in relation to their regulatory findings and judgments. Their stark shift in position on disclosure of inspection notes suggests otherwise.