Court Challenge to CQC Factual Accuracy Process

The process of seeking Factual Accuracy corrections to CQC's draft inspection reports can be cumbersome and extremely frustrating for care providers. Challenges can include:

• Correcting clear factual inaccuracies;
• Seeking amendment of statements which, though factually correct, give a misleading impression;
• Seeking clarification of the true extent of concerns lying behind phrases like "People said there were insufficient activities to occupy them in the day" – for instance, how many people?; and
• Seeking the inclusion of additional information which may have been omitted, in order to provide balance.

At times it can seem that CQC will adamantly seek to maintain wording in the draft report in the face of cogent evidence to the contrary. However, a recent Administrative Court case (R (ex p SSP Health Limited) –v- CQC) offers some encouragement for providers that CQC's processes for dealing with Factual Accuracy challenges may be fairer and more objective in the future.

Facts of the Case

The case concerned CQC's inspection of a GP surgery operated by SSP Health Limited ("SSP") in November 2014. Following the inspection, CQC sent the provider a draft inspection report in February 2015 which gave the practice a rating of 'Inadequate' for the domains of 'Safe' and 'Well led' (with the other domains being rated 'Requires improvement', leading to an overall rating of 'Inadequate'.)

SSP submitted a Factual Accuracy Comment Log setting out eight points of challenge to the draft report. These comments were considered by the Lead Inspector from the inspection team who accepted two of the proposed changes but made no amendment in respect of the other six challenges. The inspection report was finalised, maintaining the overall rating of 'Inadequate' and the practice was placed into 'Special Measures'.

Following publication of the report SSP submitted a Quality Rating Review Request. This Request, amongst other things, repeated and elaborated on some of the points SSP had made in its Factual Accuracy Log.  However, the Request did not allege any failure by CQC to follow its stated process (in the Provider Handbook) for awarding and aggregating ratings. Because of this, CQC notified SSP, in June 2015, that its request for a review of the rating would not proceed.

The Judicial Review Challenge

SSP brought a judicial review challenge to CQC's June 2015 decision to refuse the Quality Rating Review. In strict terms, this challenge was unsuccessful as Mrs Justice Andrews held that the CQC had acted correctly in deciding not to carry out a Quality Rating Review on the basis that its processes made it clear that such reviews would only be carried out on the grounds of an alleged failure by CQC to follow its processes for making and aggregating ratings decisions.

However, in a helpful judgment, Mrs Justice Andrews also considered the earlier Factual Accuracy challenges raised by SSP, and CQC's response to these, in detail. The Judge concluded that despite SSP having made a number of valid points, these had not resulted in changes to aspects of the draft report which:

• were factually inaccurate;
• in one instance (whilst factually accurate) was misleading in a way that gave rise to unjustified criticism; and
• obscured the real concern that might have been the subject of legitimate criticism.

Findings on CQC's Processes

Mrs Justice Andrews confirmed CQC's approach that Factual Accuracy challenges can only be made at the pre-publication stage and are not challenges which can be brought as grounds for the subsequent post-publication Quality Rating Review Requests.

Mrs Justice Andrews commented that it is understandable that CQC should ask the Lead Inspector to deal with Factual Accuracy Challenges in the first instance as they are best placed to evaluate the criticisms of the draft report by reference to their contemporaneous notes and/or recollection of the inspection. However, importantly, the Court concluded that it is not fair that the Lead Inspector should be the sole arbiter of whether any changes should be made.

Mrs Justice Andrews concluded by declaring that "there is an obligation on the CQC to carry out an independent review of a decision made in response to comments in the Factual Accuracy Comments Log, on a request to do so by the inspected entity, if the ground of complaint is that a fact-finding maintained in the draft report is demonstrably wrong or misleading".

It is important to recognise that this case only requires CQC to carry out a review of its decision upon Factual Accuracy challenges in cases where the provider can show that CQC's decision is "demonstrably wrong or misleading", and not in relation to all comments in the draft report with which they may disagree. Nevertheless, the case is an important step forward in terms of ensuring more rigour in the Factual Accuracy process which should provide greater safeguards for providers when responding to draft inspection reports.

Post Script – CQC's Response

It is hoped that Mrs Justice Andrews' ruling will result in greater independence and rigour being brought into CQC's handling of Factual Accuracy challenges.

However, CQC's initial Press Release response to the Judgment is not encouraging:

• Firstly, CQC's Press Release focusses primarily on Mrs Justice Andrews' finding that CQC was justified in refusing to review the rating and presented the judgment as an endorsement of CQC's processes. In contrast, the Press Release presented the Judge's declaration on its factual accuracy process (which Mrs Justice Andrews referred to as "the real issue" in the case on which she found in SSP's favour) as a 'suggested amendment'. In the context of a ruling regarding an inspection report being misleading, this representation of the outcome by CQC is surprising.

• Secondly, although Mrs Justice Andrews' declaration was that CQC should carry out (if requested to do so) an independent review of its Factual Accuracy decision making (i.e. a re-consideration), giving providers a 'second bite at the cherry', CQC' state that, from now on, all factual accuracy responses will be reviewed by someone independent of the original inspection visit. The judgment does not require this to be done in all cases, merely when the provider remains dissatisfied that the report is 'demonstrably wrong'. As such, it is not clear whether CQC is planning to seek independent input as part of its initial handling of the Factual Accuracy request, or (as the Court ordered) as part of a review of that initial handling in order to give a 'second bite at the cherry' when requested.

If you have any queries regarding this case or require assistance in connection with Factual Accuracy responses to draft inspection reports, please contact: Carlton Sadler