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Professional Comment

Challenging CQC Inspection Reports

Supplied by Hempsons – specialist legal adviser for the health and social care, life sciences, charity and social enterprise sectors.

The CQC would have you believe it is, especially if you try and use the boxes on their form. But you don’t have to. You can write what you want to write on a blank sheet of paper and this in itself can give your submissions clarity, force and weight.

The Factual Accuracy response is a provider’s main opportunity to right any wrongs. The CQC would have you believe that all you should be commenting on is where, for example, they have got the number of nurses wrong in your report, but actually this is your opportunity to challenge anything and everything, including the rating!

The ability to challenge the report, though, is no substitute for ensuring that on the day(s) of inspection, you give the inspectors access to everything they need to see and know, and if they don’t ask for something you think is obvious, then volunteer the information, because once the inspectors have ‘left the building’, the ability to provide further information is somewhat limited.

The Factual Accuracy response is not just about correcting typographical and grammatical errors, or inaccuracies in the number of nurses. It’s also about the tone and inferences that can be drawn in what is written and the way it’s written.

An inspection report is designed to be a fair and balanced reflection of the service on the day of the inspection. This can be unfortunate if you happen to have had several members of staff call in sick on the same day, so your reliance on agency staff is higher than usual. However, it can also be an opportunity to showcase how your organisation’s business planning, induction and training programmes kick into life and that staff sickness will not disrupt the organisation.

An inability to access information that is stored centrally at head office should be prompted by offers to visit head office, or to call someone at head office so that they can talk an inspector through a process. If information is not available upon request, or is not immediately visible, this needs to be addressed hea- on while the inspector is still in the building, as rectifying this after the event can be difficult.

Our experience in challenging CQC reports has been mixed. The first line of response is with the lead inspector. Some will respond well and many changes will be made. Others do not take kindly to what they see as criticism of their report and changes, if any, will be minimal.

Do make your submissions by reference to:

• The Fundamental Standards
• The CQC Provider Guide
• The CQC Enforcement Guide

Tell a story in your submissions. Explain how and why you do not consider that the description in the report describes your service and/or, notwithstanding any shortcomings identified, does not justify a particular rating, as it is not compatible with the Provider Handbook descriptions.

Don’t ever say that you are not funded enough to provide a particular level of service or that a report ‘isn’t fair’, but do use language such as ‘disproportionate’, especially if you think you have been scored harshly as a result of only one incident.

And so then what do you do? Until very recently our advice has been to lodge a complaint with the CQC complaints team at the same time as submitting the Factual Accuracy Response, and ask the CQC to consider the complaint and the Factual Accuracy Response in conjunction with each other. A dissatisfactory report can stem from a difficult inspection where a rapport was not established with the inspector.

The CQC ‘need to know’

Some inspectors don’t make the transition from provider to inspector, or have preconceived ideas about how they expect a service to operate. If providers don’t challenge the CQC, they are unlikely to establish quickly whether there are poor inspectors who need re-training or reallocating to different services.

If your experience on the day with an inspector is particularly bad, don’t wait for the report – complain straight away. There is a separate two-stage complaints process and we have experience of it working very well.
The summer 2016 case of SSP Health Ltd – v- CQC has taken the Factual Accuracy process one stage further now. In that case, a GP company completed its Factual Accuracy response but the lead inspector made only minimal changes to the report. The company was not happy but the only apparent route open to it (after a direct complaint to Steve Field!) was the ratings review process – a process that can only be used after publication of a report and where the only challenge is that the CQC has failed to follow due process.

The CQC would not reconsider, and the report was published, with a rating of inadequate.

The company sought to Judicially Review the CQC, and had a success, of sorts. While the case did not succeed on a technicality in terms of the way the challenge was brought, the Honourable Mrs Justice Andrews DBE was clear in her judgment

“…there is an obligation on the CQC to carry out an independent review of a decision made in response to comments in the Factual Accuracy Comments Log, on a request to do so by an inspected entity, if the ground of complaint is that a fact-finding maintained in the draft report is demonstrably wrong or misleading”.

Crucially, therefore, for providers across the board, whether they be GPs, dentists, care homes or an NHS Foundation Trust (to name but a few), if as a provider, you remain dissatisfied with a CQC response to your factual accuracy comments and matters upon which you have clear evidence to the contrary of that stated within the draft report remain erroneous or misleading, then Mrs Andrews’ judgment is importing into the CQC process a new level of challenge.

Previously, if the CQC did not accept a provider’s submissions on the factual accuracy response, and intended to publish its report in any event, the only way for a provider to prevent this was by way of injunction via the Court system.

Mrs Andrews intimated that this was inappropriate and placed a disproportionate burden on the provider.

However, a word of caution. This is not an opportunity to have a second bite at the cherry. The Factual Accuracy check is not an opportunity to adduce evidence that wasn’t produced at the time of the report, and neither will this new ability to challenge.

It is, however, an opportunity to ensure that a provider’s factual accuracy submissions are taken into consideration, and if the CQC fails to adequately respond to them and amend the draft report accordingly, the provider should not be prevented from elaborating on its earlier submissions in order to demonstrate its point.
A key concern of Mrs Andrews was that the lead inspector in effect was the “sole arbiter” of whether any changes could be made, given that the ratings review process was a distinct and separate process based solely on process, not on evidence. Mrs Andrews is looking to the CQC to identify an independent person within the CQC itself, to apply common sense as well as professional expertise, to identify whether a grievance is legitimate or not about an inspector’s failure to amend a report.

Further, that a short delay in publication of the report, when fairness requires, might be necessary to ensure that irreversible damage to the reputation of the provider may ensue.

While this judgment relates to the report generated following the inspection of a GP practice, the principles set out by Mrs Andrews are sound and logical ones that will apply to any inspection report produced by the CQC and this judgment is therefore of equal importance to all providers.

Hempsons’ Adam Hartrick and Philippa Doyle regularly support both NHS and social care providers in challenging CQC decisions and we are delighted with the outcome of this case and Mrs Andrews’ declaration, as this should produce a real sea change in the approach to report drafting and the care that ought to be taken in ensuring accuracy.