At Ridouts, we make factual accuracy challenges on behalf of clients on a regular basis, securing changes in relation to factual findings, judgments and ratings. However, frustratingly, we do encounter situations where the Lead Inspector refuses to accept factual accuracy comments even when it can be shown that CQC’s findings are demonstrably wrong or misleading. We say it is like someone being asked to mark his or her own homework! It is not surprising that the Lead Inspector defends their findings when challenged – it is basic human nature.
Until now, CQC has maintained that after the factual accuracy stage the only option available to a provider is to seek to challenge the report by way of an application for judicial review, possibly backed up by an application for an injunction to prevent publication of the report. However that is an expensive and time-consuming process for the provider as well as the regulator. Significantly, in a recent High Court case involving CQC, R (on the application of SSP Health Limited v CQC, Mrs Justice Andrews, the presiding judge, reached the same conclusion.
Mrs Justice Andrews reviewed CQC’s factual accuracy process in which the Claimant, a provider operating GP practices across the country, challenged an inspection report by way of judicial review. Conducting a forensic analysis of the report, Mrs Justice Andrews concluded that there were several factual matters that were demonstrably wrong yet the Lead Inspector had refused to amend the report. The Judge took issue with the Lead Inspector being the “sole arbiter of whether any changes should be made.” She concluded that requiring the provider to start judicial review proceedings would amount to a “disproportionate burden”, adding that judicial review generally was an inappropriate means of resolving disputed issues of fact. The Judge indicated that there should be an independent person introduced as part of the process to review “whether there is or is not a legitimate grievance about the Lead Inspector’s failure to correct the report.”
CQC has already revised its factual accuracy guide for inspectors in light of the High Court ruling, confirming that “All factual accuracy comments will be reviewed by another member of the Commission’s staff from the relevant Inspection Directorate. This staff member will be independent of the original inspection visit.”
CQC has confirmed in the same internal guidance that providers may submit comments at the factual accuracy stage about the following:
– Typographical or numerical errors (Category A)
– Information in the report that the provider considers to be factually incorrect- and, in support of any assertion of inaccuracy, the provider should be able to produce further evidence (Category B)
– Additional evidence regarding the position at the time of the inspection (for “completeness”) that addresses an issue that is not discussed in the draft report (but which the provider considers should be included in the report) or that the provider considers has an impact on a rating judgement (for instance, further examples of exemplary practice to support a rating of outstanding rather than good) – copies of the evidence must be provided (Category C)
It has always been important to challenge inaccuracies and misleading statements in draft reports so that it is on the record. If a provider does not challenge errors in reports they will be deemed to have accepted the criticisms and will then have to submit an action plan to CQC in relation to any alleged breaches of the regulations. However, now the case for making factual accuracy comments is even stronger where new evidence can be presented challenging erroneous and misleading statements in draft reports in the knowledge there will be an element of independent scrutiny.
The CQC internal guidance also appears to significantly widen the additional evidence that a provider can submit as part of the factual accuracy process regarding the position at the time of the inspection, covering perceived omissions in the draft report which it is felt should be included or evidence which it is believed will have an impact on a rating.
The Judge in the recent case noted that publishing erroneous information in an inspection report can cause irreversible damage to the reputation of a provider. Therefore, the above developments should be welcomed by providers who, as a consequence, should feel emboldened in making factual accuracy comments across the three categories highlighted above.