Ridout Report -Inconsistencies in Transparency – Disclosure of inspection Notes by CQC

Topics covered: Ridouts professional advice

CQC’s reporting style means the contents of draft inspection reports are often unclear or ambiguous. This can make providing comprehensive factual accuracy comments very difficult for providers.

A practical tip to pre-empt this issue would be for providers to ensure that they keep a note of the records reviewed and the people spoken to by CQC during the inspection. However, this is not always possible and even with such a note and/or the formal feedback from the inspector, the draft report can remain vague. Phrases like “some people told us…” or “a number of the records showed…” can leave the provider in the dark as to the underlying evidence upon which CQC have based their judgments.

In the interests of procedural fairness and transparency, it is fundamental that the provider is absolutely clear about the nature of the case being put forward in the draft report about their service. This is necessary to enable them to investigate matters thoroughly if required and also to permit them to provide comprehensive factual accuracy comments. Any persisting inaccuracies may be harmful to the commercial interests and reputation of the provider and may also be misleading to the public so it is important that these are addressed at the factual accuracy stage.

One way to be clear about the nature of the assertions in an ambiguous draft report is to make a request to CQC for disclosure of the inspection notes and evidence from the inspection. This a not a Freedom of Information Act request but a request for disclosure of information under section 79(3)(f) of the Health and Social Care Act 2008.  This section of the 2008 Act permits disclosure of information for the purpose of facilitating the exercise of any of the Commission’s functions, in this case the inspection process.  It is a voluntary disclosure in relation to which CQC can exercise its discretion. As a public body, CQC must approach their decision in this regard in a rational reasonable manner and provide reasons for it.

CQC’s own Sharing Information guidance recognises that, in relation to requests for notes and evidence from an inspection:

Providers may consider that they need to receive this information from CQC in order to be able to effectively challenge the factual accuracy of our reports, or so that they can decide whether to challenge CQC’s actions and judgments. In the interests of fairness and transparency, we should disclose this information to providers unless there is a good reason not to.”

We at Ridouts are often instructed to request inspection notes on behalf of clients.  Recently, we have noted a real inconsistency in the approach to the response to such requests. Whilst some are responded to timeously by the inspectors and the notes disclosed without difficulty, in other cases the requests are met with what appears to be an increased reluctance on the part of CQC to disclose the inspection notes. This entails unnecessarily protracted correspondence with CQC which can lead to delay in the finalisation of reports and, in the event the decision not to disclose is maintained, can leave the provider in the unsatisfactory situation where they are required to respond to a report without knowing the full details of the assertions made therein.

Whilst the CQC guidance provides examples of when they will refuse to disclose inspection notes, for example to protect whistleblowers or if the disclosure is likely to prejudice CQC’s regulatory work, the guidance is clear that the presumption should be in favour of disclosure. It provides that if CQC are minded to refuse to disclose the information, they should consider whether it would be possible to provide some of the information – for example, in the form of summaries or edited documents. The guidance also goes on to state that a refusal of a request from a provider should be discussed with their Information Access Team.

Notwithstanding this guidance, we have requests for disclosure of notes rejected by inspectors and inspection managers. Examples of reasons for refusal of disclosure include, inspectors annual leave, the length of time that it will take for the lead inspector to collate the notes or the fact that they contain confidential personal information.

In relation to the burden of collating the notes, one would expect that the notes ought to have been collated for the purposes of the preparation of the draft report and as such should be readily available so that they can be disclosed without difficulty.

With regard to refusing to disclose notes because they contain confidential personal information, it appears the position is misinterpreted by CQC at times. Whilst it is accepted that that certain areas of the contemporaneous notes may be subject to redaction, CQC is not required to hold most information, for example names of service users whose care files were viewed by the inspectors and those individuals spoken to, in confidence from a provider. The exception to this would be if those individuals have explicitly stated that they want their names to be kept confidential. In this case these names should be redacted, it should not prevent disclosure of the notes completely.

In our experience, there are cases where a decision not to disclose the notes does prejudice the ability of the provider to investigate and respond fully to the allegations in the draft report. This is unsatisfactory. The consequences of inaccurate reporting can be extremely costly to the reputation and commercial interests of a provider. Furthermore, with the introduction of increased intervals between inspections through the new strategy, providers are at risk of being left with an unsatisfactory report for up to 12 or 24 months before they are re-inspected.

In the interests of fairness and transparency and to facilitate the inspection process we consider that the notes should be disclosed to providers if it is considered that they are required so that they can decide whether to challenge CQC’s actions and judgments. This is particularly so in light of the proposals under CQC’s new strategy that reports will become shorter and quicker to produce and publish. We forsee that in these circumstances lack of detail in draft reports will become even more of a problem for providers and the inspection notes will be vital to enable providers to respond appropriately to the reports.

CQC have recently commented on the difficult position it puts the regulator in that they cannot publish details about enforcement action at an earlier stage and how this undermines public confidence in the regulator. CQC’s unwillingness to adopt a transparent approach to their inspection functions puts providers in a difficult position and undermines the confidence of providers in the inspection process. In the interests of balanced and independent regulation this ought to change.

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