CQC Inspection Reports – holding the regulator to account
What should a registered provider do if they receive an inspection report which contains significant errors?
The immediate thing is to ensure that a detailed response, including supporting evidence, is submitted to CQC as part of the factual accuracy process within the limited time available: ten working days from receipt of the draft report. Providers should not feel frightened about making factual accuracy comments (FACs). It is part of the process of ensuring an inspection report is fit for publication.
Based on figures released by CQC under a recent Freedom of Information request, almost 15% of adult social care inspections in 2019 led to FACs being made by providers. If one considers that over 80% of services are rated overall Good or Outstanding, then a high proportion of services rated overall Requires Improvement or Inadequate make FACs to the regulator.
Often FACs lead to significant changes to reports in terms of the facts, judgements and ratings. However, there are occasions when CQC’s response is deficient, even to the point of being dismissive. What should a provider do then? The answer is that the provider should not just give up.
An immediate request should be made for an independent review of the inspection report. Don’t be fooled into going down the route of requesting a rating review which only considers whether CQC followed its own procedures; it does not look at the merits of the report. You need to ask for an independent review of the facts. If the report has already been published, demand that it be taken down from the CQC website, pending completion of a further review.
Crucially, there is case law to back up a request for an independent review: R (on the application of SSP Health Limited) v CQC, July 2016. A GP practice successfully challenged CQC in the courts in relation to factual matters in an inspection report that could be shown on an objective basis to be demonstrably wrong or misleading.
The judge, Mrs Justice Andrews, took the view that if a provider had raised an issue at the factual accuracy stage which had not been addressed by CQC, they should be able to go back and elaborate on the objections. She added, “In order to be fair, there ought to be an effective process for resolving such complaints swiftly and fairly. It must be robust enough to ensure that legitimate complaints will be upheld.” She explained that this could be achieved by appointing an independent person within CQC, with no connection to the regulated service, to review the complaint to decide whether it was legitimate or not.
In summary, there is case law to support an additional review of the facts by CQC should the inspection report still contain statements that are demonstrably wrong or misleading based on objective evidence. At Gordons we have successfully challenged inspection reports after the factual accuracy process has been concluded, leading to improved ratings and changes to the content of the reports.
About the Author
Partner & Health and Social Care Solicitor
D.D: 01483 366069
Tel: 01483 451900
Email: neil@gordonsols.co.uk