October 4, 2019 News

How Safe are your Ratings?

 

The CQC website proudly proclaims: “From listening to your views and experiences of care to analysing data about services, information and evidence play a vital part in our work.”

There’s just one flaw in this laudable and otherwise universally applicable philosophy. Providers of care are not included in the relentless search for the truth, the whole truth, and nothing but the truth. The ‘undercover documentary’ style of CQC inspections is indeed approaching the limit of human endeavour as to the exclusion of inputs from the provider, and more importantly as to protection of inspecting officers from any criticism or challenge by those whom it regulates.

The inspection regime is accelerating ever faster away from objective assessment of a service’s SYSTEMS and PROCESSES as they reflect the Fundamental Standards. The informed in depth assessment: of the changes your new manager has made to your audits; of your upgraded care plan reviews; of your new risk assessments or revised recruitment procedures; is increasingly being replaced by anecdotal findings of the (inevitable) occasional gap in documentation. That missed signature on a MAR sheet. The one five-years-old missing reference from your files. The too brief notes on a best interests meeting. The one risk assessment that could do with just a bit more detail. For some inspectors, whatever is not risk assessed and actioned is a scoring point – after all, anyone who smokes is at risk of setting themselves on fire at any minute. Aren’t they? Finally, tick the box that ‘the audits had not identified the issues we found at the inspection’. And the loading of the inspection system against the provider is self-evident.

My formal Letter before Action in Judicial Review to CQC of 12th June resulted in withdrawal on 27th June of the briefly imposed twitterpost word limit on factual accuracy responses. But not of the 500 word limit on requests for review of ratings. Irrational? Not at all. Constraining the final opportunity to challenge the report to a twitterpost; thus blocking out any argument, evidence or process in issue from admissible documentation; extinguishes any realistic prospect of judicial review; albeit improperly ousting the jurisdiction of the courts. Smart, eh?

Other than the representations process – all but fatally flawed in its lack of fairness and objectivity, and therefore its adherence to basic principles of public law, perhaps the only residual remedy is the provider information return. And CQC has now turned its attention to the risk that this poses to the current ethos of the inspection regime as to setting out ‘what you do well’. And the risk has been mitigated so far as is possible. A far cry from the older mantra that the PIR is an “important element of our inspection process”.

The first point to make is that too many scheduled inspections are carried out without requesting a PIR at all (now aided by the requirement for annual update and the removal of the pre-inspection request, meaning that most of them will be out of date most of the time). A blind eye has long been turned by senior CQC management to the quite common practice of some inspecting officers who resent the idea of ‘advance notice’ of an inspection (contrary to published CQC policy on PIRs).

The PIR has now been rigged to remove any space for statements of what the provider does well, or what changes may have been made since the last inspection, diminishing any such input to a 500 word twitterpost addendum. It hardly needs to be pointed out that meaningful submission of such “information and evidence” is impossible on the day of the inspection. The only light at the end of the tunnel is that the format of a provider return is not prescribed by law, and providers can therefore make submissions that bypass the constraints – book in to my seminars for more detail of how to exercise your rights!

The sidelining of the provider in all these ways is an affront to the justice system. Inspection reports are of course relied on in tribunals and magistrates’ courts. All reports are admissible, including the one two years back in which your Well-led and therefore overall ratings should have been Good, if only they had looked at the available evidence. Whether within CQC in the fac or rating review, or externally in an appeal or even a trial, the determination of your regulatory position is a tribunal of fact. Your right to fair process in any such hearing is protected by the European Convention on Human Rights, but not by the Care Quality Commission.  There is no legitimacy in this jurisdiction in one party controlling let alone vetoing the submissions of the other party to that tribunal of fact. It is the CQC that operates within the justice system, and not the other way around.

The introduction of 500 word limits in PIRs, and the recent deliberate retention of the same in requests for review of ratings, are also discriminatory as against protected characteristics – by the same regulatory authority that oversees equality in your service. They will pose all the greater difficulty for the manager whose first language is not English, or who has a degree of dyslexia (as in 10% of the population).

The new absolute deadline for submissions is also discriminatory, posing problems for managers more prone to time off work at short notice. The mother of a young child who could be sent home from school sick. The person with a disability that leaves them prone to acute episodes. The manager who takes days off work on religious holidays. Exceptional circumstances that might relax the rule are restrictively defined as “failure of the IT systems at the home, prolonged absence of the responsible person, or an outbreak of contamination at the service”, or perhaps similar highly improbable events. The application of a catch-all of “exceptional circumstances” to a policy, by reference to the most unlikely catastrophes, is the all too common device of an authoritarian public body, aimed at concealing an inflexible constraint behind a veneer of respectability. Whatever you come up with it, just, won’t, quite, match, the criteria, thank you for writing to us. The potential for exclusion of the registered manager from involvement in the response to findings of an inspection is irrational to say the least.

If the new Chief Inspector is reading this then, with the greatest possible of all greatest possible respect, may I suggest that you revisit your duties and powers under our system of public law, and your Public Sector Equality Duty under s149 Equality Act 2010.
Preferably before the Courts do the job for you.

For a free preliminary consultation on your consultancy needs please call Richard Fairburn on 07866 605545. For the service brochure please make yourself at home at www.hsc-prof.com or follow the links from the Facebook page at
facebook.com/HSC-Professional-Consultancy-1715456902020143/

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We speak up for the independent sector. All news articles are published by editor Viv Shepherd.

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