There have been significant changes at the top tier of the Care Quality Commission (“CQC”) in recent months. Ian Trenholm took over as Chief Executive in July 2018 and Andrea Sutcliffe, Chief Inspector of Adult Social Care, departed in January 2019. She has been replaced by Debbie Westhead on an interim basis until Kate Terroni takes over permanently in May 2019.
Providers have waited with bated breath to see what changes would be implemented to mark the arrival of the new faces and it would appear that those developments are beginning to surface.
At a time of political and financial uncertainty it was clear that efficiency was going to be high on CQC’s list of priorities. Many of our clients have complained of having to wait weeks and sometimes months for a draft inspection report and when it did arrive, often, it was laden with factual inaccuracy. In such circumstances providers (sometimes through legal representatives) submit detailed factual accuracy comments and provide evidence to demonstrate why what the CQC has written is incorrect. This is then considered by the CQC and a final report created. Whether or not the CQC accept a provider’s comments will depend on the quality of the argument made and on the evidence that has been provided to support those arguments.
In February 2019 the CQC announced, after consultation, that it was looking at ways to overhaul this process. Formerly, providers could make factual accuracy comments on a word document table provided by the CQC or even in a standard letter format. The CQC now proposes that factual accuracy comments will only be able to be submitted through an online form. It is suggested that any other format will be rejected in the first instance. The guidance on how this will work has not yet been produced but there are real concerns that with this template will come prohibitive word limitations that mirror CQC’s current “Rating Review” system (which, in Ridouts’ view, is not fit for purpose). It is clear that the CQC is attempting to stifle the ability of providers to speak freely about deficiencies with reports and has a clear agenda of trying to reduce the scope of third party representatives from submitting highly detailed and forensic examinations of the judgments put forward by the CQC. It is no secret that the CQC begrudges the time that inspectors have to spend on reviewing factual accuracy comments but one has to consider whether the CQC have thought about dedicating more funds to improving the training of inspectors in order to avoid poor quality inspection reports in the first place. Stopping the problem of bias, failure to understand and consider evidence gathered during an inspection and poor questioning techniques would almost certainly lead to a reduction in the numbers of factual accuracy comments being made at the draft report stage. Instead, the CQC has elected to narrow the scope for argument rather than address the root cause of the problem. This is highly frustrating but entirely unsurprising.
During the consultation period the CQC had also suggested that it might reduce the time that providers can make factual accuracy comments, from 10 working days down to 5 working days. They have since back pedalled on this proposal, presumably because of provider uproar gathered at the consultation. Again, this denotes the will of the CQC to reduce the provider’s opportunity to respond in a meaningful way.
In addition to these changes the CQC has implemented a new measure whereby all registered managers will be contacted by their inspector shortly after an inspection to discuss how the CQC has formed an assessment, and, in CQC’s words “help clarify any issues or questions”. Providers should be cautious of these phone calls. The hope is that this will be a useful opportunity to discuss the inspection and the proposed judgment but there is still the risk that the inspector could use the call to persuade a provider to say that they do not have any issue with the intended judgement and will therefore not make any factual accuracy comments. A statement like that is obviously not binding but the provider should be mindful not to commit to anything verbally or otherwise before seeing the draft and spending time considering its contents.
Proposed changes to the factual accuracy process also include a flat refusal by the CQC to provide any inspection notes as part of the factual accuracy process. Previously we have advised clients to request these notes in order to clear up vague and confusing references made by the CQC in a draft report. Notes often give providers a flavour of what the inspector was looking for during an inspection and these can be invaluable at factual accuracy comment stage and beyond. It is only reasonable that a provider see these notes but the CQC has always been reluctant to provide them. Now they are formalising their approach. As frustrating and opaque as this approach is, it signifies CQC’s attitude and in any event, Ridouts believes that providers are still entitled to request notes and any refusal to supply them should be robustly challenged with reference to the relevant regulations and case law. Again, rather than attempt to strangle the process and make life unnecessarily difficult for providers, why is the CQC not focussing its attention on ensuring that a sensible detailed note is taken by the inspector and that a draft report is produced fairly and honestly on the basis of those notes? If that were to happen then the need to request notes would reduce significantly.
No provider makes factual accuracy comments for the fun of it. They make comments because their service has been misreported in some way. This could be as simple as the presence of typographical errors or as serious as a profound misunderstanding of documentary evidence on the part of the inspection team that has led to an unwarranted and prejudicial rating. Either way, there should be a fair process in place to enable the voice of the provider to be heard. CQC should stop looking at ways of saving itself time by forcing providers to reduce the size or quality of their responses and focus efforts on improving the quality of its staff so that there is no need to challenge reports.
Yes, times are hard and public bodies are looking to make savings, but efficiency at the CQC should start from within – not by narrowing the scope of a process that is already biased against providers.