As published in Caring Times – February 2021
On 7 January 2021, CQC published a formal consultation paper on its new draft strategy that it aims to implement over the next five years. CQC acknowledged that the pandemic has forced the health and social care sector to think differently and stated that the purpose of the draft strategy is to enable more effective regulation for the future.
CQC’s draft strategy focuses on four themes:
- People and communities
- Smarter regulation
- Safety through learning
- Accelerating improvement
This article will focus on the second theme of CQC’s draft strategy which is ‘smarter regulation’. CQC apparently wants its assessments to be more flexible and dynamic and said that it will update ratings more often so that everyone has an up-to-date view of quality. It stated that being smarter with data means its visits will be more targeted with a sharper focus on what it needs to look at. This raises a number of issues which will be explored in this article.
CQC’s previous strategy
CQC’s previous strategy for 2016 to 2021 also set out four priorities that it would focus on and one of those priorities was to “deliver an intelligence-driven approach to regulation”. Caroline Barker, COO of Ridouts Professional Services Ltd first considered the issue of whether technology can make CQC more intelligent in a 2018 Ridout Report and it is clear that not much has changed between then and now. The relevant considerations remain the same.
CQC’s consultation paper states, “We now have IT systems that can handle large amounts of data, which will enable us to use artificial intelligence and innovative analysis methods. This replaces more manual handling of data and will ensure we interpret data in a more consistent way.” In its previous strategy, CQC hoped that by being more intelligence-driven, it would become a more effective and efficient regulator. However, many providers in the sector would say that they have not seen any evidence of CQC being an effective and efficient regulator over the last five years so it is hard to see what will be different this time around.
How successful will CQC’s new strategy be?
The success of CQC’s new strategy all depends on its IT systems’ ability to analyse and interpret data. The questions that arose in 2018 still arise now, will CQC look at quantitative information and/or qualitative information? For example, is it the number of statutory notifications a provider has submitted to CQC that will flag up a risky provider? Or, is it the type of issue within a singular notification that highlights potential concern? Are we looking at long term or short-term trends?
As with any information that is gathered and prompts an inspection, that information merely highlights a potential area of concern which must be tested and corroborated by CQC inspectors. Artificial intelligence could be reliant on potentially skewed facts depending on the algorithms and rules that are used. Analysed information itself, must be continually analysed, tested and, if required, the base line changed.
CQC’s consultation paper states, “We’ll change our assessments to be more dynamic, and update ratings more often, so that everybody will have an up-to-date view of quality.” The significance of CQC updating ratings more often might be a good thing for providers which have been rated as ‘Requires Improvement’ or ‘Inadequate’ because they have more opportunity to get re-rated but for providers rated as ‘Good’ or ‘Outstanding’, they might want their rating to remain in place until CQC carries out another inspection. There is another potential issue and that is, if CQC is determining inspections on risk, there is a chance that providers will only get “noticed” if they are considered to be a risk. This could mean that CQC inspectors show bias towards finding poor practice and this could impact on a corresponding rating.
CQC’s rating of a service is often based on the subjectivity of individual inspectors and members of the public rely on ratings provided by CQC. If CQC’s IT systems misinterpret data this could lead to various consequences such as inaccurate CQC inspection reports and subsequent ratings. It could also lead to warning notices and often criticisms in an inspection report can form the basis of escalating enforcement action. Enforcement action could be Notices of Proposal, section 31 letters of intent or Notices of Decision which can have serious consequences for a business.
It is very important for providers to challenge misleading or inaccurate CQC draft inspection reports through the factual accuracy comments process as this is a provider’s only opportunity to challenge the factual content of a report. Sometimes providers decide not to challenge reports because they either do not think that it will make any difference or they do not want to damage an existing relationship with their inspector. However, the consequences of not challenging an inaccurate report can be very serious. If an inspection report goes unchallenged and it is subsequently published, there is a presumption that the report is accurate and the content of the report becomes the truth. If providers challenge any inaccuracies found by CQC at the outset, this can help to minimise the effects of further enforcement action later down the line. The facts are one aspect, but another is how they are applied with reference to a provider’s regulatory obligations. This is where legal input can be additionally beneficial as it will look at what the legislation requires.
As we all know, computer systems can be flawed. Therefore, it is important that the data and information gathered by CQC through its IT systems is verified before it is allowed to impact on CQC’s assessment of risk within a service. This is particularly important where CQC is relying on information provided by third parties, as often third party information can be subjective. If CQC inspectors become more reliant on data gathered through IT systems, it is possible that good care being provided by a service on the ground may be overlooked by CQC. This could lead to information being skewed and increased enforcement action by CQC as a result. It is therefore important for CQC inspectors to triangulate the data gathered with ‘real life’ facts from the ground and important that they ask providers for their comments in order to corroborate their findings.
CQC should exercise caution in the way that data gathered is relied on to predict potential failures and potential breaches of regulations. CQC’s consultation paper states, “We’ll use our regulatory powers in a smarter, more proportionate way so we take the right action at the right time. Based on the best information available, and enabled by technology, we’ll be proactive in using innovative analysis, including data science techniques, to support robust and proportionate decision-making. Combined with the experience, knowledge, and professional judgement of our inspectors, this means we’ll be alert and ready to act quickly in a more targeted way and tailor our regulation to individual services and circumstances.” However, technology can only do so much and any system is only as good as the data that is inputted.
If you require assistance or advice in relation to challenging CQC draft inspection reports or challenging other CQC enforcement action, our specialist solicitors can help. Please contact Ridouts Professional Services Ltd using the email address email@example.com or by calling 0207 317 0340.