At the end of April 2012 it was reported that a former CQC inspector had been arrested over allegations that she pressurised providers of health and social care into paying her a fee in return for a positive inspection report. CQC confirmed that this member of staff had been dismissed for gross misconduct and made the following statement:
“This inspector has failed the organisation, failed the providers who rely on us to act fairly and impartially and – most importantly – failed in their responsibility to protect people who use services through identification of poor care”.
This is obviously an extreme example of an inspector failing to act “fairly and impartially” but in recent months Ridouts have seen an increase in irrational behaviour and errors in judgement by CQC staff. Such misdemeanours include intimidating staff, the use of rude and dismissive language and refusal to look at vital documentation. A number of clients have noted this behaviour during an inspection but have been too intimidated to raise a concern at the time, fearing that doing so would encourage the inspector to give an unfavourable review of their service. It is only when providers receive their draft Review of Compliance that they realise the full impact of the inspector’s conduct and how it could affect the way that their service is viewed by readers of the report.
Examples of cases reported to Ridouts include: an inspector who judged an Outcome to be non-compliant but failed to mention that they refused to look at records which proved that the provider was actually compliant; and an incident where an inspector pursued a personal attack on a service and accused the registered manager of being a “liar”.
Providers should not be afraid to challenge the conduct of an inspector that has clearly had an unfair impact on the draft Review of Compliance report. It may be considered that this is best done during the factual accuracy process, when providers are asked to comment on anything in the draft report that they deem to be factually inaccurate. However, see below for the pitfalls of leaving raising your concern until receipt of your draft report. Many representatives of CQC have argued with Ridouts over recent months that such matters of conduct cannot be dealt with at this stage; however, Ridouts always argue that this cannot be right. If such conduct has led to an inspector’s misjudgement or false statements, then the report is inherently inaccurate. Factual accuracy and the judgement of an inspector are inextricably linked.
CQC’s new Enforcement Policy (published in April 2012) supports our view. Paragraph 39 states:
“The factual accuracy check on the draft report provides an opportunity for providers to challenge the content of the report. The factual accuracy process may legitimately challenge facts that directly impact on the judgement arrived at in the report”.
Providers should therefore feel confident that their concerns should be taken into account at this stage in the review process.
It is important to point out at this stage that a provider may consider making a complaint about an inspector as soon as the inspection has finished, rather than wait until the draft Review of Compliance Report has arrived. This would prevent CQC from assuming that the complaint had only been raised because the provider was unhappy with the result of the inspection.
Such a concern can be made through a Stage 1 complaint to CQC. It is essential that inspectors be held fully accountable for their behaviour whether it impacts the draft Review of Compliance or not. Providers should feel confident that the inspector will be transparent and fair. Staff at the services being inspected should never feel intimidated or bullied and should be free to demonstrate the quality that a service truly provides.
CQC inspectors should provide an impartial, balanced and proportionate view of a service on the day of the review. All of the information that they gather should be robust, reliable and triangulated. CQC’s internal guidance informs inspectors that nothing in the draft Review of Compliance should be a surprise to the provider, therefore, full and detailed feedback should be given. This guidance emphasises the importance of transparency and proportionality.
To ensure that inspectors give a true and accurate picture of a service in their report we advise providers to assign a member of staff to shadow the inspector during the visit. This person should take a detailed note of what the inspector is reviewing and any comments that they make. It would also be sensible to record what documents the inspector has been offered and whether they reviewed those documents. If an inspector refuses to look at documents that a provider feels may be important then these should be sent to that inspector and their manager within 24 hours, explaining the reasons for doing so (i.e. that the inspector failed to take the information into account).
In the situation where an inspector has been rude or intimidating to either staff or service users, a provider should consider taking a full statement from the individual concerned as it would be useful should a complaint be made and whilst the conversation is recent. If at any stage during the inspection a provider feels that the conduct of an inspector is upsetting the service users or staff, it would be entirely reasonable to ask that inspector to leave on the basis that the provider owes a duty of care to those parties.
The care sector has faced a public relations nightmare in recent months with homes and staff being vilified in the press. It has never been more vital to ensure that a service is being honestly and fairly reflected by the regulator, particularly since prospective service users and their families will be reviewing the finalised report on CQC’s website. Ridouts would advise that if an inspector demonstrates unreasonable behaviour then a provider should take steps to make their concerns known to CQC, be it during the factual accuracy process or via a stand-alone complaint to the regulator.
CQC are keen for providers to adhere to the standards set by law, however, we should also be mindful that inspectors too have their own rules and regulations which they should be careful to follow.01