Recently I worked on a case which involved making challenges to a draft CQC inspection report where CQC had made a number of assumptions on the basis of limited facts and had awarded that provider with a rating of requires improvement in a number of domains. The evidence that was being used to support the finding of requires improvement was minor in the extreme and the report itself read largely favourably but for the points of criticism which, though small in nature, had the impact of reducing the rating of the provider from good to requires improvement.
Retaining the ability, as a provider, to make meaningful change to a draft report will centre on the evidence that can be provided in support of the challenge. In this particular case the evidence that the provider was able to provide was extensive and pointed clearly to a failure on the part of the CQC to engage properly with the Client prior to the drafting the report. Simply having the evidence is only part of the battle, explaining the challenge to succinctly address the alleged concerns within the draft report is also integral to successfully challenging draft reports. The fundamental question providers face is how does one know when and how to effectively challenge the CQC’s findings. That decision can only be made following an in-depth review of the information contained within the draft report and comparing that against evidence which speaks to what the position was on the day of the inspection and in the time leading up to that inspection date. Put simply, the decision as to whether to challenge the CQC or not is not one that can be considered lightly or summarily.
In this case the provider completed a first draft challenge to the inspection report which addressed some of the concerns but had not directly connected the challenge to the concerns identified in the report. Knowing how to explain both the evidence that challenges the draft report and relate it to the contents of the draft report is key, and an analysis by your legal team can assist. Ensuring that responses address CQC’s concerns comes from interrogating the concerns and the way in which they are framed within the draft report.
You can argue about the proportionality of the content that is included in the draft report and such challenges should be deployed in support rather than as the primary challenge. In all likelihood challenges on proportionality grounds involve an increased reliance on subjective opinion which is less likely to prove persuasive in isolation. The strongest challenge is contained in the ability to rebut whatever concern is raised with evidence which challenges its existence. Efficiency is also key in directing challenges squarely where they are most likely to move the needle and effect the change that the provider requires. Rather than adopting a scattergun approach to all challenges within a draft report where some challenges may not be as strong. Some arguments may fall away if not supported by good quality evidence and it is crucial to target arguments and supporting information to bring the CQC around to the provider’s position.
Whilst the format of draft CQC inspection reports are set to change, the decision as to how and when to challenge those reports remains. Evidence that supports a departure from the CQC’s findings will still hold weight, a consideration of the comments that are included within the report and maintaining a good relationship with CQC inspectors will be of increased importance to persuade the CQC that the need to commit criticisms of the provider to paper are unwarranted. The old adage that prevention is better than cure holds true still if providers continually test the evidence upon which the CQC relies and can evidence actions being taken to address concerns that will likely reduce the perceived need by CQC to criticise providers in inspection reports.
Targeting a challenge to draft inspection reports is an important tool for providers to use. It must be noted that the CQC themselves have an internal review post factual accuracy challenges being made and providers should also treat draft inspection reports seriously. The strongest way to do this is to stress test both the evidence and the explanation of the same prior to submitting a formal challenge to the draft report. There is a reason why it is not advisable to represent oneself in a trial of any sort because it is difficult to retain the objectivity required without scrutiny of the facts that are at play. Even with the best internal processes possible within a provider this should be supported by external legal oversight of any challenges to draft reports that are made. At Ridouts we have the experience of strengthening challenges to draft reports. We scrutinize the comments within the draft report and advise clients on the best available arguments and evidence that should be deployed to support successful challenges to draft reports.
