05/02/2019

CQC inspections and their subsequent reports are of major significance to any provider of care. A negative CQC report can have major reputational and financial consequences. A CQC report will be one of the main factors in a commissioner’s or self-funder’s decision over which provider to go to.

Ensuring a report gives a fair reflection of your quality of care is therefore essential. But what can you do if you believe CQC’s draft report is unfair when you receive it?

There are a number of mechanisms to challenge a CQC report. The first two of these, pre-publication, are:

  • Factual Accuracy Challenge (FAC)
  • Independent Review

If the outcome of these is not satisfactory, there are two further options:

  • Quality Rating Review (post-publication)
  • Judicial Review (pre- or post-publication)

In this article, we will focus mainly on an FAC because that gives the greatest scope to agree substantive changes with CQC, and at the earliest stage in the process.

Post-publication challenges

The Quality Rating Review is a narrow process by which you can challenge your quality ratings across the five key questions the CQC bases its review on (safe, effective, caring, responsive, well-led). This challenge, however, is limited to CQC’s processes for awarding these ratings, and not about the underlying factual findings or judgements on which the ratings are based.

At both the pre- and post-publication stages, judicial review of the CQC's decisions is available as a last resort, but can only be taken if you can demonstrate to the Court that you have exhausted every other avenue available to you at that stage. Additionally, the grounds for judicial review (illegality, irrationality and procedural impropriety) are narrow and the burden of proof is high. Taking your regulator to Court is not where you want to end up if you can avoid it.

Factual Accuracy Challenges

The FAC is really where you should focus your efforts, being your first and principal opportunity to achieve a fair outcome. The scope of an FAC is in fact much wider than it sounds. Despite its name, it does not have to be confined to simply correcting factual inaccuracies. You are also able to challenge judgements CQC has made, and any statements that you believe are misleading because they give a false impression.

For example, imagine an inspection found that, of 20 patients’ records analysed, one of them did not contain evidence of the necessary patient consents. If the draft report said that “of 20 patient records studied, not all of them contained the necessary consents”, whilst not factually incorrect, this may give a misleading impression as to the scale of the problem and it would be reasonable to ask it to be changed to “one of them did not contain the necessary consents”.

As well as challenging inaccurate or misleading statements, we would advise that you should also challenge if:

  • CQC has misinterpreted relevant guidance in arriving at its judgements
  • CQC’s judgements that certain factual findings constitute a breach of the Regulations are incorrect or disproportionate
  • CQC has failed to mention relevant matters

CQC provides an FAC form through which to submit your challenge, but, if your challenges are substantial, we recommend that you accompany the form with a covering letter setting out a summary of your key concerns.

Managing the process internally

A key aspect to successfully challenging a report is to ensure you involve and consult with all the right people on the ground. You need to get the views of the people who are most knowledgeable about the service or issue in question.

This means planning ahead. You will have only ten working days to respond to a draft report. You won’t know precisely when CQC will send it to you, but you should plan ahead as best you can, for example identifying any periods when key individuals are on holiday and making any contingencies.

Taking a constructive tone

Make sure your response sets your points out clearly. Avoid using internal shorthand or jargon. Attach any relevant documentary evidence in support.

Whilst you will certainly want to defend anything you feel is unreasonable or wrong, it pays to prevent an antagonistic situation developing. Keep your responses balanced and polite, and avoid the temptation to ‘kitchen sink’ it by throwing in as many objections as you can think of! Stick to the key points and be prepared to accept that some of CQC’s recommendations may be valid.

Independent Review

If you are unhappy with CQC’s response to your FAC, a further pre-publication option may be to ask CQC to carry out an independent review. This is not available in all cases, but is where CQC’s refusal to make a change is demonstrably wrong. These reviews involve CQC appointing a member of its staff, who is “independent of the original inspection visit”, to review the draft report and your challenges to it. If, however, you are concerned about the independence of the reviewer, we recommend that you challenge it.

At Bevan Brittan, we can help you with any aspect of an FAC or other challenge process. On the basis that prevention is better than cure, we can also arrange a mock inspection with specialist consultants to provide an independent assessment of areas for improvement before a CQC inspection.

Written by Carlton Sadler, Partner, and Nicole Ridgwell, Associate.

This article was originally published in Healthcare Markets Magazine - December 2018.