- To successfully challenge a draft Care Quality Commission (CQC) inspection report, providers need to engage with the CQC’s factual accuracy process.
- The most effective way of challenging your rating is to critique each line of the CQC inspection report and, where there are grounds to challenge the findings, supply both the detail and supporting evidence to substantiate each claim.
- There is a feeling within the sector that ratings sometimes appear to have been reached before the inspectors consider the whole evidence base to support their findings.
- CQC’s guidance states that it has revised its processes to ensure that sufficient independent reviews are undertaken of factual accuracy responses.
Like it or not, ratings for CQC-regulated services are here to stay. Most recently, CQC has signalled its intention to roll out ratings for a number of additional services that were previously inspected but not provided with a rating. These include substance misuse centres and independent community health service providers. But as this expansion of ratings is rolled out within the wider healthcare sector, how much reliance should be placed on these perceived determinations of quality?
The ratings are by their nature a primitive way of providing readers with a comprehensive understanding of the quality of a service. However, they are here to stay, and will continue to be of increasing importance across all providers of care, irrespective of their specialism. This means it is wise for every provider of care to be prepared to challenge the findings of inspection teams in this increasingly simplified landscape, where a provider lives or dies by virtue of its aggregated rating.
Challenging an inspection report
To successfully challenge a draft report, providers need to fully engage with the factual accuracy process. This process allows the provider to challenge the accuracy of the report as drafted. In our experience, the most effective way of challenging the ratings is to critique each line of the report and, where there are grounds to challenge the findings, supply both the detail and supporting evidence to substantiate each claim.
An interesting legal decision is of relevance to this discussion. R (SSP Health Limited) v CQC initially involved a judicial review challenge of the ratings review process. This is the next stage of challenge following the factual accuracy check. Justice Andrews ruled in the case that there was a flaw in CQC’s internal processes. While these processes were fair, it was not always clear that they had been properly followed. Justice Andrews further stated that the flaw in CQC’s processes, where the provider alleges that evidence is available which conflicts with that made within the report, should be independently reviewed and evidenced as such. Justice Andrews stated that if she were to be asked to review the decision of the lead inspector in this case – where the decision did not accurately reflect strong evidence to the contrary submitted by the provider – she would have quashed the decision and reverted it back to CQC to review.
Even this decision, which seemed at first to be a victory for providers who challenge the sometimes-entrenched positions of CQC inspectors, demonstrates deference to the regulator in its decision-making processes, however they are conceived. CQC stated in response to this decision that it was already ensuring that its processes were independently reviewed adequately and that it reflected this in its guidance on the factual accuracy process. However, this is still akin to marking your own homework, irrespective of how independent the reviewer may claim to be. There is a possibility that deference to the lead inspector’s findings will be shown internally by CQC.
The process of challenging a rating following the factual accuracy process is a ratings review, which the case mentioned above focused on. However, such a review is of little consequence, since the process does not consider any substantive challenges over and above those related to the inspection team failing to follow its own processes.
Returning to the presence of ratings within the healthcare sector, the importance of challenging the factual basis of the ratings cannot be stressed strongly enough. Ratings, at times, appear to have been reached first and the evidence drafted in such a manner so as to support such the findings. It follows that there is an element of cherry-picking data that reinforce the inspector’s opinions about a service.
This is the system that health and social care providers are working within, which is soon to be extended to a larger cohort. The most important stage in challenging these ratings is properly engaging with the factual accuracy process. Despite its flaws, this process gives the provider the best chance, post-inspection, of ensuring that their rating is as high as possible. Ensuring that the underlying detail contained within the report is accurate should also be prioritised, since inspection findings can be used as evidence of a history of non-compliance if not challenged.
While ratings often appear to misrepresent the quality of service provision, providers must engage with the CQC’s processes to protect their position.
About the author
Nythan Smith is a trainee solicitor for Ridouts Professional Services Plc, a niche law firm providing expert advice to the health and social care sector. www.ridout-law.com