February 1, 2019 Legal

CQC intends to ring changes to how Providers can challenge its inspection reports

CQC has commented often that it wishes to improve the process of inspection specifically in relation to the speed at which reports are published following inspection. CQC intends to bring in new guidance which will apply to all providers of health and social care around the process of checking reports for their factual accuracy.

To those unfamiliar with the process of challenging inspection reports the changes to the process may appear inconsequential to the inspection process. Upon closer inspection of the updated draft guidance there are a number of changes which have been made, on balance, in the interest of expediency rather than fairness to the process of inspection for providers.

The updated draft guidance states that CQC do not have to refer to all evidence obtained during the inspection but will however include reference only to the best evidence gathered to support its judgements. For readers of the report, Providers and other stakeholders to be assured that the best judgements have been reached there must be an implicit level of confidence placed with inspectors to properly balance the information that is at their disposal. Too often is this confidence in the Regulator called into question where evidence appears to have been cherry-picked to support a judgement and the evidence supplied during Inspection has not been given sufficient weight within the report.

Of significant note is the CQC’s inclusion of evidence that has contributed to its judgements, although it is not yet clear how this will be presented.

Providers will now be asked to use CQC’s own online form to respond to the draft inspection report, unless there are exceptional circumstances. There will be a link to download the factual accuracy check form which will include tables of evidence, if relied upon by CQC. There is no confirmation as to whether this online form will have word count limitations but if this is the case then this should be robustly challenged as it will impede a Provider’s opportunity to properly present its comment. The response deadlines remain the same i.e. 10 working days after the Provider receives the draft report.

The areas of challenge are largely unchanged with the exception of an explicit reference to what we at Ridouts have always believed to be the case- that evidence is required to be submitted to CQC in order to justify comments challenging the factual position of the Provider at the time of the inspection.

CQC makes a plea to Providers to make it easier for them to identify changes within the report with references to the exact location of comments that are challenged in the report, including the wording, page and paragraph number within the report. We have long been of the opinion that factual accuracy comments should be presented in a manner which makes it easy for the inspection team to respond to concerns raised and ensure that our responses on behalf of Providers follow those guidelines. Providers would be minded to ensure they do this, if they do not CQC reserves the right to refuse to consider their response, although such a decision could be the subject of a robust challenge.

The draft guidance make specific reference to allowing Providers to supply CQC with action taken following the inspection which can be included within the report. It is at CQC’s sole discretion as to whether such information will be included, and it should be noted that such information is unlikely to be used to change the judgements in the report, except in exceptional circumstances.

In a departure from CQC’s previously issued guidance on the disclosure of information to Providers CQC has now taken the decision not to disclose Inspector’s notes specifically in relation to an inspection. With this more recently published draft guidance CQC is making clear that it does not consider the notes of inspectors of particular importance when reports are being drafted. This position is strongly disputed by Ridouts since it is from these notes that inspection reports are drafted. Indeed if enforcement action is taken against a provider it is likely that inspector’s notes would be subject to disclosure during proceedings. Inspector’s notes form an integral part of the inspection process and should be subject to challenge, they are evidence much like that which police use to support charges. We have seen occasions where inspector’s notes do not mirror findings made in the final report and other occasions where an inspector has been unable to read their notes and information has been left out of the draft report. The decision to remove a Provider’s ability to request inspectors notes appears to be one with the primary purpose of expediting the publication of inspection reports at the expense of fairness and proportionality. Providers should be privy to all information that has been gathered about its service and how that information has been interpreted.

There is reference to the protection of the confidentiality of workers within the report. Whilst it is accepted that confidentiality is an important principle which ensures that workers feel empowered to speak openly without fear of retribution from their employers; in our experience all to often the opinions of workers are relied upon in and of themselves as evidence of poor practice without consultation of documents or other staff. Providers are often not provided with the opportunity to present their position adequately within reports in respect of opinions made to inspectors.

The CQC still maintains that responses are independent as they are reviewed by an independent person not linked to the inspection; we continue to challenge this position. There have been instances where Inspection Managers have had prior involvement in an inspection by manner of a discussion about or the signing off of enforcement action against a Provider. In such scenarios, subject to the Manager’s judgement, their involvement in the ‘independent’ review was deemed appropriate in CQC’s earlier version of factual accuracy guidance, as long as they had not been part of the inspection visit. This obviously cannot be right. The updated guidance is silent on this point which suggests that the independence of reviews is still not achieved. Notwithstanding the Manager’s ‘independence’ the fact that the inspector who wrote the report responds to and effectively marks factual accuracy responses in the first instance effectively shields the report from proper scrutiny when it finally makes its way to the ‘independent’ reviewer. If there were to be a truly independent review of the report the reviewer should sit outside of the CQC in order to provide an impartial assessment based on the available evidence both to CQC and the Provider. These reports are vital to the success of a Home and it is imperative that they are accurate and represent the true position.

Providers that are familiar with the CQC’s current factual accuracy guidance might find this updated draft guidance unchanged on its face. The points of challenge that healthcare providers wish to make will largely fall along the same lines: challenging the factual accuracy and proportionality of points made within the report. Providers will have to apply themselves in a more forensic manner to challenging the evidence base relied on by CQC during the factual accuracy check. It remains imperative that Providers challenge inspection reports where they dispute findings made by inspectors since an unchallenged report will form part of the compliance history of a provider. The inspection report stands as fact when published so challenges to inspection reports should be made to ensure an accurate account of provision at a service is recorded.

Nythan Smith
Ridouts

www.ridout-law.com

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