After the announcement of the first lockdown, CQC announced that they would significantly reduce in-person inspections. However over the last 12 months there has been a notable increase in activity.
The CQC are clearly pursuing a policy of visibly and aggressively challenging providers. However the content, growing as these actions are, is seen to be less well based on a sound legal foundation. The policy seems to be to make stigmatising and damaging allegations which are almost always published. A conclusion is that the CQC are determined to reinforce their presence by aggressive enforcement. That determination is reinforced by the lack of any real ability for meaningful challenge. In practice, the only possible challenge arises through the Factual Accuracy Process which is to be concluded within 10 working days of receiving a draft inspection report.
So there is only limited space for challenge. Challenges are reviewed by the inspection team who made the allegations. This highlights the problem with the lack of any objective challenge short of formal litigation. A provider who conducted a complaints procedure in this way would, rightly, be criticised. It would be said, as it is, clear evidence of a closed culture within an organisation.
The CQC encourages its staff to believe that they are infallible and beyond challenge. Of course those staff act on the basis that the mythology of faultless and blameless decision making justifies their actions. The culture is to close out and dismiss any form of disagreement. Legitimate challenge is often labelled as ‘denial’ – another way of avoiding negative criticism.
Unfortunately, this attitude has led to poor decision making and, slipshod analysis of material and avoiding disclosure of material which might tend to support the challenge. This mirrors the criticism of the Police and the Crown Prosecution Service as to robust case analysis and transparent disclosure to Defendants.
There is a developing pattern of inadequate regulatory performance and this stems directly from the belief that inspectors must always be correct. A number of examples follow:
- Burden Of Proof
In absolutely all phases of regulatory enforcement, the onus is on the regulator (CQC in this case) to proof the allegations which are made. Almost as a matter of routine there is a pattern of equivocal and lazy fact finding. “We were not assured….” or “We could not be fully assured…” Such a preamble establishes proof of absolutely nothing. It is an attempt (sadly often successful) to switch the burden of proof from being positive on the regulator (the party who asserts must prove) to a continuing requirement on the registrant (if we are not satisfied, you must be non-compliant). This is no basis for adverse decision without clear supporting evidence.
- Dynamic Approach To Decision Making
It is clearly established that at every step of the decision making process, the evidence must be considered at the date of that decision. This is not a review of the original decision but a fresh decision based on material at the date of the current decision. More and more CQC are fudging the process (particularly where representations are being considered) by simply finding that the original decision was fair, reasonable and proportionate. In effect, CQC are avoiding the dynamic requirement of the process and simply endorsing the original decision rather than re-considering that decision on current material. Providers are unnecessarily stressed, their resources stretched, and, significant expense incurred.
Too often it is seen that when the next step in the challenge process comes, CQC back away, in effect, reconsidering the decision when that should have been effected at the earlier stage. This is poor regulation and should be seen as unacceptable.
- Allegations Of Regulatory Breach
A regulatory breach is an allegation of a criminal offence. Such an allegation should not be made without clear evidence to show that a conviction would be obtained on a prosecution which must also be shown to be in the public interest. Too often allegations of breach are sprayed through inspections reports for matters which could never justify a prospect of conviction or even the launch of a prosecution. Similarly, where it is decided to issue a Warning Notice, the regulator should be satisfied that a conviction will be secured and prosecution is in the public interest. Over recent months, there has been a substantial increase in the number of Warning notices issued. Almost never are these followed by prosecutions or any further actions. Often the evidence does not support an allegation of breach and, sometimes, the allegations do not even support breach of the named regulation. These false allegations need to be called out. Uncontested allegations of regulatory breach will lead to a negative rating and, then, often, severe financial consequences for a provider.
- Hearsay Evidence
Too often material in inspection reports and enforcement action rely upon the ‘hearsay’ evidence of unidentified persons. Such evidence is useful to trigger further investigations but at best is evidence of what was said but never evidence that the substance of what is said is correct, absent direct material. Frequently, the obvious desire to make negative findings is supported only or mainly by such reports which do not begin to establish truth.
This is reinforced, as unfair, by a blatant refusal to identify those who have made such allegations. This critically impedes the provider’s ability to investigate and respond. There is no reason to withhold the identity of such witnesses, unless people have spoken on condition of anonymity, but if the regulator decide to withhold identities, they cannot properly rely on such anonymised, and often vague, assertions without their own direct supportive evidence. CQC are seen to slip into the lazy option of making decisions on the basis that such anonymous reports are correct.
- Inspections Notes
CQC have established clearly that they will not release copies of inspections notes to support findings, this is extraordinary. The contemporary notes are a best evidence to support findings. Formal Courts or Tribunals will almost always order disclosure of such notes. How is this burdensome? The disclosure is a simple photocopying job. What Police Officer would expect to be able not to disclose a notebook on the basis that it was too much trouble? The decision to withhold notes frustrates challenge. It might be suspected that notes will not be disclosed because CQC surmise the content and quality of the notes would undermine officer’s findings.
Observation:
These 5 examples of CQC’s tactics in attempting to frustrate the limited opportunity to challenge its findings and allegations, are becoming a common feature of CQC regulatory actions.
This is far too frequent to be dismissed as anecdotal criticisms of poor individual inspectors. The growing evidence suggests this to be a part of an established policy to limit the ability to challenge. It follows that that policy itself challenges those providers who disagree to spend scarce resources pressing their challenges to a point where they must be taken seriously.
Ridouts view is that this is a serious abuse of the power and position of CQC as a regulator.
Providers, who genuinely disagree with allegations they see to be incorrect, should not be daunted from challenge. Consequences of ignoring the fake allegations can be very serious. If not challenged, the allegations will be perceived as the historical truth and will definitely impact on the way a particular service is perceived by commissioners, purchasers of service, financier, media, and, other stakeholders.
For advice and support in responding to any CQC draft inspection report or enforcement action, call Ridouts on 0207 317 0340.
