The 2018 Football World Cup was the first in history where live Video Assistant Referees (VAR) were brought in with the ambition of improving the quality or refereeing decisions. It hoped to achieve this by bringing to the referee’s attention in real time points of play which might have eluded them otherwise. CQC allows its findings to be challenged after the event when a report has been drafted but by this time the most critical time to challenge has been missed. The critical time to challenge an inspectors’ findings is prior to information being recorded in the inspector’s notes since it is from these notes that the report is drafted.
Prior to the 2018 World Cup the decisions of referees had been reviewed but they took place following the conclusion of a match, much like CQC’s processes currently allow. These reviews were ineffectual to the outcome of the match as they were only capable of impacting the decision that was made retrospectively, after the damage by the challengeable decision had been caused. It was close to impossible to reverse the impacts of an incorrect decision, which may have lead to a penalty, free kick or sending off which would have irrevocably changed the outcome of a game. The same relative inability to reverse the inspector’s opinions and judgements of provider on an inspection visit are applicable. It is understood that the referee is unable to view every incident from every angle in real time throughout the game and the introduction of VAR was designed to reduce this occurrence. A referees’ perspective is subjective and irrespective of an approved system of training different referees can come to different decisions. Such decisions have the ability to impact the ultimate outcome of a game and parallels can easily be drawn to CQC’s model of inspection. There is no such immediate review of decisions made when a CQC inspection is being conducted and so much of the same concerns that VAR was brought in to address apply equally to CQC’s inspections.
The decision to bring in VAR was an acknowledgement of the fallibility of referees and the limits of their ability to make the correct judgements based on the available evidence before them. In CQC’s model of inspections an incorrectly held opinion of a provider can be the difference between the survival or destruction of the care provider. Consequently the provider should be afforded every opportunity to ensure that the notes that regulatory action is based upon are correct. It is those initial findings made in notes of inspection which are translated into inspection reports which form the chronology of compliance upon which a provider’s very existence can prosper or wane.
The care provider should be allowed to challenge in a meaningful way throughout the inspection visit. The best manner to offer such a challenge to the care provider would be to have a real dialogue with the inspection team and to introduce independent observers to attend external to CQC to provide the effective VAR- style function. In the absence of both an intensive forensic effort by the provider to clarify the position set out in the draft inspection report and a willing inspection team to accept where errors have been made, the report will remain as drafted. Once the inspection team commit their notes to writing, irrespective of the quality and vigour of protestations by a provider, providers face an uphill battle to get the record set straight.
CQC claim to have built up a national picture of the quality of care provision but this is in the context of a VAR-free world with providers who are unwilling to challenge CQC’s findings and challenge only when threatened with the most extreme actions available. On this basis it could be said that this picture is one which has only been partially completed.
Guidance for CQC inspectors state that they should commence their inspections looking for instances of good practice. The reality in our experience is that often the converse is the case. The disparity of power in the inspector’s favour over the inspected is clear and obvious. This is not to tarnish all inspectors with the same brush but to highlight the reality of the bargaining positions of each side on this playing field. The argument could be raised that the majority of interactions that I have been exposed to fall in the area where challenges to CQC’s findings are realistically under contemplation. To agree with this argument would miss the fundamental point that it is precisely those providers who are perceived to be providing poor care who should have timely recourse to represent themselves since the impact upon them is of increased importance.
Bringing in a VAR-style form of review would bring implementation difficulties but it likely to go some way to addressing areas of misinformation and presumption which go into notes made by inspectors which eventually find their way into CQC reports. Some providers might see the time required to challenge the findings of an inspector as not being worthwhile which speaks to the trust placed in the system by providers and not necessarily as to the accuracy or veracity of CQC’s inspection processes. Often when a provider receives a copy of the draft inspection report the time required to be invested in setting the record straight is not deemed by providers to be a valid use of resources. This in itself is not a vindication of the inspection process but is an acceptance of the way that things are.
The introduction of a real-time VAR-style method of assessment could certainly form part of the solution to improving CQC’s system of inspection of care providers. It might lead to the fairer treatment of providers and would offer them increased opportunities to raise challenges at the point of inspection or prior to the point when decisions are taken to impose conditions. There is still the potential for error to remain within any assessment of a provider much like has been evident during the employment of VAR in the World Cup 2018 but increased checks and balances in advance of the issuing of the draft inspection report would only be a positive step.
The VAR style system is not currently in place, nor, to my knowledge is it under contemplation. Providers should challenge CQC both during and post- inspection visits in order to ensure, so far as is possible currently, that the history of compliance of a provider is accurate.
There are problems with the system of inspection with CQC holding providers to account based at times on an incorrect or incomplete evidence base. The introduction of VAR is a lens which highlights the flaws within the current system of inspection where misinformation is recorded and relied upon to generate the inspection report. Despite a provider’s best attempts even when challenges are made it can be difficult to clarify the provider’s position once a draft report has been issued. VAR could form a potential solution since it would hold the inspector to account prior to the formalisation of conclusions based on evidence found.