CQC has inspected your home. You wait to receive the draft report. You wait and you wait. You wait some more. Finally the draft report arrives and it is not good news, your rating is unfavourable. But your draft report has arrived three months after the inspection. Your Home is not the same as it was three months earlier yet CQC is still insisting that process must be followed and the report published.
At Ridouts we are seeing client’s receiving draft reports weeks and months after an inspection has taken place. Sometimes, enforcement action has been initiated against the provider in the form of a warning notice, or worse, a notice of proposal to remove the location from the provider’s registration. In either case the facts of the inspection have not been determined through the factual accuracy process before enforcement proceedings are started.
Whether enforcement action has been initiated or not, where a provider is deemed to be failing to comply with its regulatory obligations, surely CQC wants to inform them of this as soon as possible? Surely, providers need to know what they are doing wrong so that they can put it right for the good of the service users. Is CQC being responsible by failing to inform providers of their findings in a timely manner?
We know that CQC has a significant backlog, not only in respect of issuing draft inspection reports, but in the office we are still waiting for a response from CQC about representations to a warning notice that were made in July 2014.
One of the purposes of publicising reports and enforcement action taken is to keep both the public and commissioners informed about the standards of care. Is it not misleading for CQC to seek to place historical information into the public domain? Although CQC note publication dates on its website, is it not potentially damaging to a provider’s business, when the public and commissioners are seeking a contemporary view of the service?
By the time a provider makes factual accuracy comments and these have been considered by CQC, additional time will have passed since the inspection took place. Whilst it is accepted that an inspection is a snapshot in time, the finalised inspection report is now significantly “out of date”.
CQC accepts this position in relation to the publication of Warning Notices where consideration is given to representations against publication not only on the basis that it contains inaccurate ‘facts’ but that it would be unfair to publish it for some other reason. This includes whether steps have been taken to achieve compliance and therefore it is not in the public interest to publish such information. In the period between inspection and receipt of the draft inspection report many providers take steps to strengthen their offerings and make improvements.
Where enforcement action has been taken against a provider, before CQC has sent the draft inspection report for review, providers will have made representations which often include improvements that a provider has taken. By the time factual accuracy comments are made (whatever, the merits of the findings) CQC is acutely aware of action taken by a provider. CQC knows that homes are not in the same position that they were several weeks or months earlier.
In addition, where enforcement action has been initiated before production of the draft inspection report, one has to question whether factual accuracy comments submitted by a provider will have any effect – it being highly unlikely that any inspector would amend a report on the basis they taken enforcement action based on those alleged facts. Are CQC merely paying lip service to the factual accuracy process in these circumstances? To change the inspection report would undermine the decision to initiate enforcement action and were enforcement action has been taken in the form of say a notice of proposal which has been based almost exclusively on one inspection, should CQC be publishing that report which is the subject of appeal – ultimately to an external body who will determine the fact many months down the line?
Whilst CQC will say it is under a statutory duty to publish a report, it is also under a duty to send a prepared report to the provider “without delay”. Does it have a duty to publish a report which is potentially misleading but it also could damage a provider’s business. Publication has the potential to not only place service users at risk (as commissioners are relying and reacting to the most contemporaneous information available) but also runs the risk of de-stabilising a Home, undermining improvements that have been made in the intervening period.
Providers should not be penalised for CQC’s lethargy in producing a draft report for factual accuracy comments.
One option would be for CQC to place publication on hold while a further inspection is carried out (but on the basis it has the resources to turn around a further report for factual accuracy comments) and then publish the “old” report alongside the “new” report so that the public can see the history of the home. As there has already been significant delay in the production and publication of the “old” inspection report any further delay would be negligible.
Each case should be determined on its individual merits but providers should always seek to push back on publication of an out-dated report which has the potential to damage a business that has improved in the interim. One option would be to initiate judicial review proceedings but this is a potentially expensive option and does not have a guaranteed successful outcome.
Where such a report is published (and CQC often circulate press releases to news outlets) providers must be ready with robust press statements and talk to its residents and relatives about steps it has taken to improve the service. After all, if the residents and relatives are supportive of a service then whatever CQC say, surely the sentiment of the “Mum’s Test” should prevail?