How To Handle Clinical Misunderstandings By The CQC

At Ridouts, it is not uncommon for us to receive correspondence from GP practice’s expressing frustration at continued clinical misunderstandings by the CQC. These misunderstandings tend to reveal themselves through factually inaccurate inspection reports, warning notices and may even result in the triggering of enforcement action. It is critical that a provider takes any opportunity to correct the CQC’s misunderstanding.

How Are Clinical Records Assessed?

In response to the COVID-19 pandemic the CQC developed digital clinical searches as a means to assess how GP practices are providing clinical care to their patients. These searches focus on areas of clinical importance and are meant to identify potential clinical risks in relation to the delivery of safe and effective care. This method remains in place and strongly aligns with the CQC’s new remote inspection model. On its website, the CQC assert that this method of assessment means that a provider is not inconvenienced by the presence of a specialist advisor. However, a provider may provide support through the use of virtual conferencing tools. This remote assessment means that the specialist advisor obtains no onsite understanding of the context in which the system is utilised nor are they benefitted by the ‘on the ground’ knowledge of the provider’s staff. This isolated assessment of provider’s clinical systems and processes often results in a misunderstanding or inaccuracy.

As an alternative means of assessment, the CQC may deploy a specialist advisor to assess a practice’s clinical systems and processes. This ‘specialist’ may be a GP, pharmacist or practice nurse however providers should be aware that this is not a requirement under the Health and Social Care Act 2008. A specialist, with the appropriate skillset or not, will review a sample of a provider’s clinical records and make a broad determination on their effectiveness. The sample may or may not be reflective of the realities of the provider’s practice and, in our experience, the contents of the clinical records are often misinterpreted by the specialist.

An inspection is normally followed by ‘formal feedback’. A provider should note that this feedback is not normally presented in any great detail and merely provides an overview of the key themes identified by the inspection team. This means that the feedback will not offer a provider any insight into how any specialist, or a digital clinical search, interpreted the provider’s clinical systems and processes. This means that, during a period of inspection, a provider is presented with little opportunity to provide corrections.

In our experience, many providers express frustrations at findings that are grounded in:

• The CQC’s reliance on a small sample of clinical records as a robust indication of how the provider operates;
• The CQC’s reliance on its interpretation of the clinical system as determined by its uneducated or isolated understanding of how the clinical system should operate;
• The CQC’s failure to have any regard to the context in which the clinical system operates.

These frustrations are becoming increasingly common with the CQC continuing to rely on its assessment of a provider’s clinical systems as evidence of a failing to provide safe care and treatment to patients.

How Do You Address Inaccuracies?

Following an inspection, a provider will be in receipt of a draft inspection report and, in some circumstances, a warning notice. Both processes offer the provider the opportunity to provide robust submissions to the CQC challenging their inaccuracies and failed understanding of their clinical processes and systems. These challenges are either by way of factual accuracy comments or warning notice representations.

At Ridouts we would always encourage a provider to be robust in their responses to the CQC. We appreciate that it can be hard to navigate these responses but it is always our position that the provider is the expert in how their systems operate and should feel empowered to robustly put their case to the regulator. Furthermore, a failure to complete factual accuracy comments or warning notice representations is a missed opportunity to get your position on record. This position can be critical in the preventing of further action by the CQC, namely through the issuing of a Notice of Proposal or an urgent Notice of Decision.

The CQC are currently in the process of changing the format of factual accuracy responses. It is unclear whether theses changes will also be impact warning notice representations but should a provider wish for more information on the current factual accuracy process, click here (Factual Accuracy Comments) or here (Warning Notice Representations). While we appreciate that the structure of the response may be changing, we maintain that the manner in addressing inaccuracies or misunderstandings should remain the same.

In addressing the CQC’s failed understanding or misinterpretation of a clinical system or process, the provider needs to go back to basics. It should never be assumed that the CQC has an awareness of certain clinical practices or procedures therefore, when we prepare a response on behalf of a provider, we ensure that every detail of the clinical process is explained. We appreciate that it can be hard to find the words to explain a system which is best demonstrated in action, hence why we would urge a provider to consider the process from a lay person’s perspective. A step by step explanation, supported by demonstrative documentation, is critical to accurately conveying a clinical system. Supporting documentation remains an essential step in the process.

We appreciate that it may feel unduly laborious to be continuously correcting the CQC on points which, from the provider’s perspective, are routine clinical practices. However, simply conceding the point allows for false and misleading information to make its way to stakeholders (patients, the public and professional regulators) which may have detrimental effects on the practice.

Ridouts Is Here To Help

If you are a GP practice facing similar frustrations to those outlined in this article or simply require general advice on CQC process and procedure, our specialist solicitors can help. Please contact Ridouts Professional Services Ltd using the email address info@ridout-law.com or by calling 0207 317 0340.