How to challenge the CQC inspector
Some doctors have been left badly shocked at the contents of inspection reports from the Care Quality Commission. If that happens to you, then be aware you have the right to reply about factual accuracy comments and warning notices. Samantha Guest reports.
After registering a service with the Care Quality Commission (CQC), the next interaction a provider is likely to have with the regulator is via an inspection.
The result of this is a published inspection report that may be accompanied by a warning notice.
Publication of these documents makes them readable to a wide audience and any independent practitioner affected should be well aware of their right to respond.
A thorough response by a provider aids the CQC in fulfilling its obligation to make sure information sitting in the public domain is an accurate and well rounded reflection of a service.
Draft inspection report
An onsite inspection can be a stressful and high-pressured situation, but coping with the resultant draft report can be equally challenging.
Inspection reports are essentially the most compelling piece of marketing for any health or social care service, therefore the contents of an inspection report ought to accurately reflect what the regulator witnessed while inspecting.
In our experience, providers are often left shocked and disappointed when the draft inspection report is received. They are often unsure of how such a negative draft inspection report could have arisen from what appeared to be a positive period of inspection.
An overly negative, and inaccurate report, is likely to impact a provider’s business and result in reputational damage.
We always encourage providers to reflect carefully on a draft inspection report and to feel empowered to challenge them where there are clear errors or something simply does not feel fair or reasonable.
This is particularly relevant for those with a highly technical, complex and/or specialised service. In these instances, it is often the case that the CQC has not fully understood the nature of the service provided and therefore fails to accurately report and analyse internal policies or procedures.
A draft inspection report is challenged by way of factual accuracy comments. At my legal firm, Ridouts, we have vast experience in challenging draft inspection reports. Some contained minor errors and others presented highly damaging and misleading portrayals of a service.
Critical eye
While a provider may have the time to prepare their own response to a draft inspection report, it may find its inability to be objective impacts its ability to address the right points from the right angle. We operate forensically and go through every comment, nuance and asserted ‘fact’ with a critical eye.
In a recent matter, a reading of the draft inspection report highlighted a clear misunderstanding of the CQC of how the provider operated.
This was not only evident in the explanation of the service but in how the CQC reviewed the provider’s internal processes, policies and procedures. We worked with the provider to accurately break down the information into an understandable format, which clearly outlined its safe practices.
The CQC is legally required to prepare a draft inspection report on the matters inspected. A copy of the report must be sent to the provider and manager ‘without delay’.
Information from patients
Providers should be clear that not only will an inspection be made up of findings unearthed during a physical onsite visit but also from information gathered remotely from other stakeholders – patients, family members, commissioners and whistleblowers.
The CQC often relies on subjective third-party opinion to demonstrate how a service is operating in practice. While this is a credible form of information-gathering, its reliability is often unchecked by the watchdog.
This can result in a disproportionate reliance on third-party opinion. In preparing factual accuracy comments on behalf of clients, we seek to remind the CQC of its obligation to triangulate, and fact-check, all information before passing comment within the inspection report.
In practice, a provider has ten working days to challenge any factual inaccuracies in the draft inspection report. This is a fairly tight time-frame and we strongly encourage a provider to obtain legal advice as soon as the draft inspection report is received.
Conclusion
It is natural for providers to get overwhelmed during periods of high CQC interest and involvement in their services. Onsite inspections are often targeted and fail to accurately review a service as a whole.
This is indicative of the CQC’s ‘risk-based approach’, meaning that a provider is likely to only be inspected where the watchdog believes there are issues to be found.
Also, the accuracy of information obtained at an inspection is only reflected to the extent of an inspector’s understanding of the services offered by a provider.
This is evidenced through the limited or inaccurate information provided in a draft inspection report and/or warning notice.
A provider is the only reliable expert on the nature of its service. If the CQC fails to accurately capture a provider’s service, then we strongly encourage a provider to exercise its right of reply through factual accuracy comments and/or warning notice representations.
Samantha Guest (right) is a ‘registered foreign lawyer – New Zealand’ working for Ridouts Professional Services Ltd, London
