Legal Opinion

Challenging CQC inspection reports – is it worth it?

Laura Hannah, Senior Associate Solicitor, Regulatory Department, Stephensons Solicitors LLP

It is often the case that providers do not make use of the factual accuracy process to challenge an inspection report, even where they are not satisfied with the accuracy or completeness of the evidence relied upon to formulate the judgments within a draft inspection report. This is entirely the wrong course of action; providers should always make clear, robust challenges. If no challenge is made to a draft report and it is subsequently published, there is a presumption that the contents of the published report is entirely accurate. There is also no record that a provider has challenged the findings, which may be used as the basis to pursue enforcement action later on.

It is reported that between 2018 and 2019, the CQC undertook in excess of 17,000 inspections across all sectors. However, in recent months, concerns have been raised through the CQC’s own quality assurance processes regarding the accuracy of inspection reports. It is reported that an internal audit at the CQC found that duplicate material was used in 108 reports and the regulator has had to remove two experts by experience, as well as a specialist adviser from inspection activity. It is understood that the CQC are undertaking a ‘lessons learned’ exercise to consider how they can avoid the risk of this happening again and improve their processes moving forwards.

This may not shock a lot of providers who have received an updated inspection report in recent years. In the past year, we have assisted numerous providers in challenging the factual accuracy of their draft inspection reports. In some cases, these challenges have led to significant changes in a report, including the removal of alleged breaches of regulations, as well as entire rating changes.

In one case, we represented a domiciliary care provider whose overall rating had dropped from ‘good’ to ‘inadequate’ following a comprehensive inspection. After some investigation, it was established that one whole section of the draft report related to a recent inspection of another provider, which had been conducted by the same CQC inspector. This cast significant doubt on the accuracy and completeness of the inspector’s overall findings. In addition, we submitted that there was insufficient consideration and inaccurate analysis of evidence available to the inspector on the day of the inspection throughout the report and repeated references to the inspector’s own personal opinions, all of which contravened the CQC’s own policies and procedures. As a result, the CQC agreed to conduct another inspection immediately and withhold publication of the factually inaccurate report.

More recently, we acted for a care home provider who was alleged to have breached two regulations and was rated as ‘requires improvement’. Following the acceptance of a number of robust factual accuracy comments and supporting documentary evidence, the CQC agreed to remove the breaches and increased one rating from ‘requires improvement’ to ‘good’.

In this ever changing regulatory environment, which is only likely to see further change as the CQC evolve and update their assessment framework and inspection approach, it is important that providers make detailed and supported challenges against any findings that are not accurate or consistent with the CQC’s strategy and framework in order to protect their business and reputation.

Whilst it is always good to maintain a positive relationship with your inspector, providers should not be anxious about challenging their inspection reports or ratings where they have solid grounds to do so and can back up any challenge with robust documentary evidence. Inspectors expect to be challenged and it is widely accepted that errors or mistakes can sometimes occur, particularly in light of recent concerns; that is why these processes exist. In order to achieve success, however, providers do need to make sure that their challenges are reasonable and proportionate and are set out clearly to avoid any misunderstandings; challenges cannot be rushed or lack an evidential basis.

 

 

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