May 28, 2019 Legal

CQC Regulation Paradigm – work to suppress dissent

As the most recent Panorama investigation shows, clearly, the CQC are failing in their most important task of identifying and eradicating the very worst forms of abuse. The CQC failed the residents in an archetypal old fashioned residential unit for those with Learning Difficulties whilst working in the very same area of the country, to stifle and frustrate modern small caring units and deterring financial and investment providers.
Those at the top of the CQC need to reflect urgently and anxiously about their priorities and their fundamental agenda.
A strong and effective regulator should not be afraid of challenge, nor unwilling or unable to justify criticisms of its judgments on a rational basis. Yet once again we see that the latest round of revisions to the guidance on the inspection process are clearly specifically designed to discourage and suppress dissent, the ability for which is the true touchstone of successful regulation. Respect for the regulator will come from the recognition of its impartial and credible actions which are backed by sustainable evidence, and, NOT by hectoring and bullying providers out of their clear rights to disagree on a rational and courteous basis with adverse judgments which will impact seriously on the viability of businesses.
The CQC announce that their purpose is to inform and support users of services and their close supporters – usually families. That noble aspiration becomes reduced if the product of the process – inspection reports and ratings – are not seen to be credible and sustainable.
The latest guidance on challenging inspection reports and on CQC writing inspection reports goes to reinforce the impression of quashing dissent.
The CQC has long sought to suggest that challenges to judgments cannot be made on the basis of disagreements which go beyond assertions of factual inaccuracy. That is complete nonsense, of course a regulated provider can challenge the substance of criticism and the conclusions drawn if the assertions upon which those judgments are bound are wrong.
The latest factual accuracy forms which seek to prescribe maximum numbers of words to fit into Twitter style responses are deeply flawed. The CQC have an important and potentially enhancing or destroying influence on regulated businesses. It is axiomatic that providers should know and be able to challenge those assertions that they believe to be wrong. Clearly that cannot be effectively achieved in a limited word count. Fortunately, the forms present the attachment of evidence and those attachments can and should extend to a concise but full explanation of the grounds for disagreement.
There is no reason why some providers have to accept coercion into following a process which constrains their ability to express disagreement. However it is sensible to try, wherever possible, to use the template created by the CQC to endeavour to ensure a responsive challenge process, but, the CQC must receive significant material fully to understand the basis and detail of the challenge just in case the matter goes further e.g Judicial Review and indeed, to be fair, which is their duty.
This attempt to stifle the process of challenge follows on from prior policies with the same intent –
1. The refusal to supply inspection notes
The inspector’s judgments must be founded on material viewed at inspection. Proper practice requires that inspectors record observations and findings so as to inform their subsequent writings. The records (notes) should be visibly able to justify conclusions and that will strengthen and enhance credibility of findings. Persistent refusals to disclose, recently even on the ground that the notes might be difficult to understand fuels the suspicion that inspection reports are not a fair reflection of observation but rather what the inspector hopes will justify their subjective decisions. Inspectors should have good observation notes – so what is the problem with disclosure? Can one imagine a Police Officer expecting to be believed without a contemporary record from his / her notebook?
2. Independent review after factual accuracy
The High Court in the SSP case made it clear that not only should providers be able to supply post inspection evidence, but also, that in the event of continuing challenge after a finalisation of the report the provider should be able to seek a genuinely independent review. The CQC has sought to avoid this clear decision by suggesting that the draft report is quality checked by a team manager before being issued as a draft. That is clearly wrong. The team manager is not independent and the review should occur after the challenges have been considered.
The CQC’s attempt to avoid the consequences of the judgment is redolent of an attitude that the initial post inspection judgments are effectively fixed.
3. Rating Reviews
This process which the CQC only permits if the challenge is not in relation to substance but rather correct process by the inspectors, expressly does not permit challenge to judgments, except on the basis that the inspectors have not followed the correct CQC procedures.
Again the challenge is limited to a maximum number of words (Twitter style) and does not allow for the independence of review endorsed by the High Court in SSP. This is more about gaining an illusion of a challenge path rather than the reality of substantial and effective challenge.
Previous guidance made it clear that challenge must be made at the Factual Accuracy stage. That section of guidance is now missing from the new revised document. Of course the substance is not changed but the unwary might think that no challenge to judgment is permitted which is not correct.
The whole thrust of the developing guidance is that dissent and challenge is unwelcome whereas a robust system would be exactly the reverse.
Report writing guidance
The new guidance for inspectors on writing their reports is in some ways unexceptional. However, the whole tenor when set out in the context of guidance on challenge will inevitably encourage report writers to cut corners and limit detail. We are already seeing shortened reports. This does nothing to support providers or to reassure the public who read the reports.
Perhaps the most surprising aspect of this guidance is the suggestion that the report writer should use standard prepared text. Predictive report writing is upon us. Can inspectors whose judgments are vaunted as so clear and impartial really not be trusted to put their conclusions into their own words? We have already seen cases where writers have selected what appears to be the wrong predictive text sometimes to the disadvantage of the provider and sometimes to the disadvantage of the CQC.
This development will be nothing less than a disaster. This is not just a policy to stifle the provider, but, now, to stifle the report writer. It will discredit and undermine the very credibility and independence which the CQC seek so strongly to promote. Cut and paste is no substitute for reflective writing and will, if adopted, reinforce the other criticisms of the partiality and lack of credibility in report writing. It will inevitably encourage challenges by way of judicial review which may be the last and only route to challenge injustice.
Despite the CQC behemoth continuing its determination that it does no wrong and its officers possess a degree of infallibility, providers should not be deterred from challenging where they have genuine and sustainable disagreements with what is written in reports. The CQC should reflect on the implementation of these polices for the whole enforcement policy which are designed properly to protect users of the service rather than pay lip service to objectivity and impartiality and thereby, rather than as Panorama has so graphically and horrifically shown, actually protects and eradicates abuse and bad practice.
Dissent is valuable and the foundation of credibility and respectfulness for the process of regulation. CQC must, with its senior team, reflect carefully on all of this.

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