Challenging CQC’s Evidence Base – as published in Caring Times

CQC appointed its new Chief Executive to the Board, Ian Trenholm.  He is due to take over the role in July 2018 when Sir David Behan leaves.  Mr Trenholm started his career in the police service before moving on to roles including Chief Operating Officer at Defra and Chief Executive of the Royal Borough of Windsor and Maidenhead.  While Mr Trenholm will primarily be responsible for leading the delivery of the next stage of CQC’s 2016-2021 strategy of quality improvement, it is expected that, in light of his police background, he will influence CQC’s current practices in terms of evidence gathering.

Through the Health and Social Care Act 2008 and associated regulations, CQC has the power to inspect any registered provider at any time.  In line with its inspection powers, section 61 of the HSCA requires CQC to produce and publish a report following an inspection.  In addition to its inspection powers, the HSCA also gives CQC the power to take drastic regulatory action against care providers.  CQC’s enforcement powers are described in detail in its enforcement policy but they include the power to close a registered service through the cancellation of a provider’s registration or the removal of a location from a provider’s conditions of registration.  Such action usually follows on from a negative CQC inspection and CQC will use the findings from its inspection processes to justify any enforcement action it takes.

At Ridouts we have found that during inspections CQC does not always collect solid evidence to support assertions made in its inspection reports.  However, as inspection reports are snap shots of a service as at the day of inspection, assertions in the report can at times be hard for providers to challenge.  For example, CQC may reference records they have viewed during the inspection and draw negative inferences from the content of the records without corroborating their findings.  It may be difficult for providers to identify the documents CQC references in a report, particularly as CQC does not identify the service users whose records were viewed.  Upon questioning from the provide in response to receipt of the report, CQC may state they do not know which service user or specific record the comment relates to (by this time it may be over a month since the inspection took place) therefore denying the provider the opportunity to investigate the allegation.  In these instances, as the provider is unable to confirm or deny the factual accuracy of the finding, CQC will usually decide to continue to include the observation in the inspection report.  This issue could be easily rectified by CQC photocopying records viewed and taking detailed notes during the inspection process.  The lack of evidence puts both providers and CQC at a disadvantage.  The provider is unable to investigate and correct any potential errors in CQC’s investigations and CQC is unable to provide primary evidence of allegations – this is particularly important should formal legal proceedings be pursued.

As the factual accuracy process is an internal process, some providers find it difficult to challenge ‘woolly’ findings.  This is particularly pertinent as the majority of the time the inspection team that carried out the inspection is responsible for reviewing providers factual accuracy comments and judging the quality of their own work.  There is little that can be done to challenge CQC once the factual accuracy process has concluded aside from requesting an independent review of the FAC response (CQC’s response to such requests is inconsistent and there is no guarantee a request will be granted), launching a ratings review challenge (the process of which is severely limited) or pursuing costly and time-consuming judicial review proceedings.  If CQC decides to close ranks and support its inspection team no matter the evidence (or in most cases lack of), providers can feel cornered with no option but to weather out the impact of an unbalanced negative inspection report, hoping CQC reinspects in the not so distant future and reaches better conclusions next time.

However, when CQC makes or proposes to make fundamental changes to a provider’s registration such as the cancellation of registration or the imposition or variation of conditions of registration, it has to set out the reasons for the decision through its notice of proposal and notice of decision process.  If a provider subsequently appeals a notice of decision CQC becomes, for the first time, accountable to an independent body – the First-tier Tribunal.  The Tribunal process is a legal process and, in the majority of cases, the burden of proof lies with CQC to demonstrate that its evidence is sufficient to warrant the action they are proposing to take.  Therefore, to succeed through the Tribunal process CQC must set out its evidence base.  In our experience this is at times lacking.  CQC have a knack of making generalised, sweeping conclusions with little real evidence to base these on.  As a result, it can be fairly easy to pick apart their case and argue that in order to continue with the proposed action, they should re-inspect the service first.  As the Tribunal bases its decisions on the position of a service at the time it makes the decision, if CQC is unable to disprove information put forward by the provider, the provider has a reasonable chance of success.

It is hoped that, with the introduction of the new Chief Executive, CQC will become better evidence gatherers during those all-important inspections, making it easier for individual inspectors to demonstrate their findings through a solid evidence base.  If this happens, it could help change the landscape of CQC enforcement action, ensuring that CQC only takes enforcement action when it is truly justified, rather than pursuing serious enforcement action against providers based on an unsound evidence base and the judgement of a single inspection team.

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