Holding the CQC to account: a flawed system – Ridout Report -March 2020

It often feels that Providers have limited opportunities to have their say and defend their corner against the CQC. It can appear that the system is stacked against them. Providers should ensure they are aware of all of the systems available to respond to the CQC, in order to capitalise on every opportunity to have their voice heard.

Inspection

Some inspections don’t go as well as others. Sometimes it is down to bad luck on the day such as unexpected staff absence. However, on other occasions it can be down to how the actual inspection is going, the rapport that is built, or in some cases not, with the inspectors.

Given the limitations of the systems of review and redress of inspection reports, it is imperative that the inspection itself is also seen as an opportunity to right any wrongs. Providers can challenge aspects of the inspection process that they are not happy with during the actual inspection. If your experience on the day with an inspector is so bad, complain straight away – don’t let it linger.

Furthermore, if the inspector doesn’t ask for something you think is obvious, then volunteer the information, because once the inspector has left, the ability to provide further information is somewhat limited.

Factual accuracy

The factual accuracy process takes place prior to the publication of the inspection report and is the prime opportunity for a Provider to seek to correct any erroneous, unreasonable or disproportionate statements within a draft inspection report.

The process allows a Provider to challenge the accuracy and completeness of the evidence and findings on which the ratings are based.  CQC’s guidance is clear that you can also challenge the ratings at this stage, which is beneficial because unlike a rating review, there is no word limit, so this process is often the better route to use to challenge anything and everything.

That said, it can be difficult to challenge the report when CQC refuse to disclose the underlying inspection paperwork/notes. In the past the CQC would release inspection notes upon request to assist a Provider in preparing for the factual accuracy stage. However, more recently the CQC is vehemently refusing requests for inspection notes given a change in policy. The CQC’s 2015 Sharing Information Guidance stated “…In the interests of fairness and transparency, we should disclose this information to providers unless there is a good reason not to”. However, this guidance was diluted in 2018 to state “…in the interests of fairness and transparency, we may need to disclose some specific information to providers unless there is good reason not to….”. The CQC takes a stronger stance in its factual accuracy guidance currently on its website stating “We will not release the inspector’s full notes from an inspection. We will consider requests for extracts of notes about a specific issue where this is reasonably necessary to enable you to understand the basis for a statement in the draft report that you believe is factually inaccurate.”

If you believe you require the inspection notes to respond to a draft report, to increase your chances of CQC providing them, you should make a targeted request to the CQC specifying the exact information you require to be able to respond to the report.

Independent review

If a Provider is unhappy with the CQC’s response to a factual accuracy submission, it is definitely worthwhile seeking an independent review of the CQC’s response.

A formal rationale for seeking this came about through the High Court case of SSP Health Limited v CQC (July 2016), where Mrs Justice Andrews stated: “…there is an obligation on the CQC to carry out an independent review of a decision made in response to comments in the Factual Accuracy Comments Log, on a request to do so by an inspected entity, if the ground of complaint is that a fact finding maintained in the draft report is demonstrably wrong or mis-leading.”

At Ridouts we interpret this judgment to afford Providers a new level of challenge. Where a Provider remains dissatisfied with CQC’s response to its factual accuracy comments, or the report remains erroneous or misleading and the Provider can evidence this, serious consideration should be given to requesting an independent review.  That is a review by someone entirely independent of the inspection team beyond CQC’s current internal “quality check” or “peer review” which takes place before CQC’s response to the factual accuracy submission is sent to the Provider. The CQC has not formalised a process for independent review, however, Ridouts has had success in requesting this for clients.

Providers must be aware that this is not a fresh challenge or an opportunity to adduce evidence that wasn’t produced at the time of the inspection or factual accuracy response. That said, if the CQC has failed to adequately respond to the Provider, the Provider should not be prevented from elaborating on their earlier submission in order to ensure their factual accuracy submissions are appropriately considered.

A request for an independent review may delay publication of the report but there is a very short timescale which a Provider has to ask for an independent review. Often the CQC publish the inspection report within days of sending the Provider their response to the factual accuracy check and in some cases the CQC publish the report on the very same day. The inspection report is a Provider’s biggest marketing tool and the extremely short delay between the CQC sharing its response to the factual accuracy check and publishing the final report makes a mockery of the SSP judgement and in cases where the published report remains inaccurate, causes irreversible damage to a Provider’s reputation.

Rating review

Often CQC inspectors immediately, and incorrectly, signpost Providers to the rating review process if a Provider expresses any dissatisfaction with CQC’s response to the factual accuracy submissions or the final inspection report. This is despite the rating review being an entirely different process to the factual accuracy check. The only ground for requesting a rating review is that the CQC have failed to follow its processes for making ratings decisions. CQC fail to acknowledge that a rating review is not an automatic next step to the factual accuracy process.

The limitations of the rating review process and the historic lack of success for Providers in seeing significant changes to ratings, emphasises the need to utilise the factual accuracy process to its fullest. A rating review is not an opportunity to challenge the evidence the judgments are based on; this can only be done at the factual accuracy stage. Furthermore, Provider’s must proceed with caution with rating reviews because the rating may go down as well as up, including ratings that were not challenged.

Unlike the factual accuracy check, a rating review takes place after publication of the inspection report. During the review the report remains published on the CQC’s website. Despite the fact that a note is placed on the website stating that a review is taking place, if the report is inaccurate, the damage is already done. Furthermore, it doesn’t help that the CQC can take up to 50 working days to consider the rating review.

Complaint

At times, a Provider feels that the only way to get their voice heard is to submit a complaint to the CQC. Submitting a complaint to the CQC should not be used as an alternative to submitting factual accuracy comments.

A complaint is an opportunity to round up all issues from the inspection day itself to the way in which a factual accuracy check, independent review and/or rating review was handled. This can include a complaint relating to the conduct of inspectors, as well as CQC’s incorrect conclusions and unreasonable or disproportionate regulatory responses.

The CQC has in place a two stage complaints process. Complaints submitted to CQC’s National Customer Service Centre are forwarded to the CQC’s National Complaints Team who will either deal with it within 7 working days (under the first line resolutions process), or within 30 days propose a date for response, within which someone not connected to the issue and process investigates the complaint and reports its findings to the complainant. According to the CQC’s website, if the complainant is unhappy with the outcome of the complaint, the next step is to contact the Parliamentary and Health Service Ombudsman (PHSO) via their local MP.

The timing of submitting a complaint should be carefully considered. A complaint can be submitted at any time however, in our experience, if it is submitted either directly after a factual accuracy check and/or directly to the inspector, the complainant is often immediately signposted to the rating review process with limited consideration being given to the content of the complaint. Furthermore, according to the CQC’s website, if there is an outstanding complaint when a rating review is submitted, the rating review is paused to deal with any complaint against the CQC.

When complaining, be sure to clearly state what is being sought, which could include re-inspection, a change in inspection team or a meeting with the CQC. It goes without saying that requests are not always met and unfortunately, in some cases, Provider’s concerns are not taking seriously until the CQC is presented with a judicial review claim. It could surely be argued that the lengths a Provider has to go through to have their voice heard is a clear indication of how flawed the system is.

 

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