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Published On: 15 September 2016
A recent case relating to the factual accuracy of CQC inspection reports - R (on the application of SSP Health Ltd) v Care Quality Commission - will come as welcome news to any health and social care service providers who have experienced the frustration of legitimate factual accuracy points not being taken on board by the CQC.
Until now, providers who highlight inaccurate or misleading findings in draft reports as part of the factual accuracy check stage have had no recourse to any further review ahead of the report being published if the lead inspector decides not to make the requested amendments (apart from bringing a judicial review challenge which is not generally a realistic option). After publication - by which time the damage is essentially done - providers can ask for a ratings review but this is only possible where the CQC has not followed its own process for awarding/aggregating ratings so will not help with factual accuracy issues.
The High Court has now said that - in the interests of fairness - the CQC must introduce some process whereby decisions by lead inspectors not to amend draft reports in response to a provider's concerns about factual accuracy can be reviewed at the request of the provider by someone within the CQC who was not involved in the inspection.
In response to this case, the CQC has now amended its Factual Accuracy Check Guidance and Forms to introduce a provision that all factual accuracy responses will be reviewed by another member of CQC staff who is independent of the original inspection visit.
A provider which runs a number of GP practices in the North West (SSP Health Ltd) brought a judicial review challenge against the CQC after it refused to make amendments to a draft inspection report about a GP practice in Liverpool which was critical in a number of respects and gave the practice an overall rating of 'inadequate'.
Prior to the report being published, the provider had used the 10 day factual accuracy check window to ask the CQC to correct a number of factual inaccuracies. These included references in the draft report to the GP practice not providing staff with incident training (which the practice said was in fact provided), not having a register of older people (which the practice said it did have) and not having a system to cascade national safety alerts (which, again, the practice said it had), plus a misleading suggestion in the report that all staff were required to be DSB checked (when this was not in fact the case).
The lead inspector made a couple of the requested amendments, but the points referred to above remained unchanged in the published version and the overall rating continued to be 'inadequate'.
After publication, the provider requested a ratings review but was told that there were no grounds for this because the CQC had followed the correct process in deciding which ratings to award.
As a result of the 'inadequate' rating, the GP practice was placed in special measures. A further inspection subsequently gave a rating of 'good', but the provider felt that the previous 'inadequate' rating had had an adverse impact on its reputation and decided to challenge the CQC through the courts.
Central to the outcome in this case was the Judge's view that "There is little point in giving someone an opportunity to make factual corrections if there is no procedural mechanism against an unfair refusal to make them."
In this case, the lead inspector's refusal to amend references in the draft report to certain things not existing (i.e. incident training, register of older people and system for cascading alerts) simply because these had not been seen at the time of the inspection was found to be unreasonable in the face of the provider stating in the factual accuracy comments log that they did in fact exist.
Although it was accepted that there were no grounds for a ratings review once the report had been published (because the CQC had followed the correct process in deciding which ratings to award), the fact that the CQC had no mechanism for reviewing/reconsidering its responses to the provider's factual accuracy check comments was found to be unfair.
The Court therefore made a declaration that, where a provider continues to maintain that a fact within a draft report can be shown to be wrong or misleading, the CQC is obliged to review the lead inspector's decision not to make the amendment by means of an independent person within the CQC "applying common sense as well as his or her professional expertise" to decide whether the provider's concerns are legitimate. This new layer of review may have to involve a "short delay" in the publication of the report.
The CQC has responded to this judgment by amending its procedures to reflect the requirement to introduce a further mechanism to ensure the factual accuracy process has been properly followed before a report is published. This is reflected in the CQC's new Factual Accuracy Check Guidance.
The new guidance provides for all factual accuracy responses to be reviewed by another member of CQC staff from the relevant inspection directorate who is independent of the original inspection visit. It also covers what should happen if the provider disputes a finding made by the CQC on the basis that it did not see evidence of something at the time of inspection - i.e. the CQC can either ask to see the evidence if this would be easily ascertainable or agree the requested change or amend the report to refer to the provider's position on the point. The guidance is accompanied by a new Factual Accuracy Comments Form which will record the name of the independent reviewer. It also includes a separate section for addressing comments about 'completeness' in terms of other evidence which existed at the time of inspection which the provider believes should be taken into account.
It remains to be seen whether these changes will, in practice, sufficiently safeguard against unfair refusals to make corrections as envisaged by the Court. It should certainly be the case though that there will be closer scrutiny of lead inspectors' decisions about whether to accept or reject requests for amendments made at the factual accuracy check stage.
A note of caution, however - this is not designed to be a 'second bite at the cherry' in terms of making factual accuracy comments. It will be as important as ever for providers to act quickly within the 10 day window to identify any factually inaccurate/misleading findings in draft reports and to set these out as clearly as possible with robust supporting evidence from the start.
Our team of specialist health and social care lawyers regularly advise registered providers in both the public and independent sectors who wish to challenge the CQC's findings, including:
We can also provide expert support to providers in the event of CQC enforcement action, from responding to Warning Notices through to defending criminal prosecutions.