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Challenging CQC’s factual accuracy
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The process of seeking factual accuracy corrections to the Care Quality Commission’s (CQC) draft inspection reports can be cumbersome and extremely frustrating for care providers. However, a recent court case may change the process for the better. Carlton Sadler explains.

There are a number of ways that providers can challenge the factual accuracy of draft inspection reports.

They 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?
  • 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 offers some encouragement for providers that CQC’s processes for dealing with factual accuracy challenges may be fairer and more objective in the future.

What are the facts?

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 comments 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. Due to this, CQC notified SSP in June 2015 that its request for a review of the rating would not proceed.

Judicial review

Following this, SSP brought a judicial review challenge of CQC’s June 2015 decision to refuse the quality rating review. In strict terms, this challenge was unsuccessful. 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, the nature of the argument advanced by SSP changed during the course of the judicial review proceedings. Helpfully, the Court spent some time considering SSP’s concerns regarding CQC’s handling of the earlier factual accuracy process.

Factual accuracy concerns

It is informative to look at some of the formal factual accuracy challenges that SSP raised regarding the draft report and CQC’s response to those challenges at the factual accuracy stage. Providers may find some of the themes familiar:

1. Register of older people – the draft report stated, ‘The practice did not keep a register of all older people to help plan for the regular review of care and treatment.’ In the factual accuracy log, SSP pointed out this was incorrect and that there was such a register. In rejecting this challenge at the factual accuracy stage, CQC stated, ‘There was a lengthy discussion with the practice manager about how the practice ensures the needs of older people were met. We talked specifically about registers and practice profiling and he was not aware that this took place or that registers were kept. No evidence was presented for this during the day, including the one referred to here, and ample opportunity was given for this during our visit.’

However, the Court pointed out that none of these points provided any justification for CQC to maintain an assertion that the register of older people did not exist. Mrs Justice Andrews went on to state that the existence of the register was something that could easily have been ascertained by CQC and, although the practice manager’s lack of awareness of the register was a legitimate cause for concern, it was a different type of concern from the one which would arise if the practice did not keep a register of older patients in the first place. Clearly, a change could have been made to the draft report to clarify the precise nature of CQC’s concern.

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.

2. Systems for dealing with national safety alerts – similarly, the draft report commented that the practice did not have a system in place for notifying relevant staff of alerts from national safety bodies. In the factual accuracy log, SSP rejected this and described the system which was in place. However, in considering the factual accuracy response, CQC stated it was not prepared to make any change to the draft report as, ‘we did not see evidence of this during our visit and staff did not discuss this with the inspection team’. As Mrs Justice Andrews pointed out in her judgment, however, there was nothing in CQC’s response to indicate whether staff had actually been asked about this system during the inspection.

3. DBS Checks – the draft inspection report commented that, ‘staff recruitment policies were in place but not all staff, including those with chaperoning responsibilities had undertaken a DBS check’. This statement was literally correct, but the natural inference to be drawn from it was that there was a regulatory requirement that such a check should be carried out on all staff, including those with chaperoning duties. In fact, SSP had carried out risk assessments (which had been seen by CQC) and concluded that staff involved in chaperoning duties did not need to undertake a DBS check as long as they only did so under the supervision of a person who had been checked. Mrs Justice Andrews commented that CQC’s concern appeared to be the lack of information in the risk assessments explaining the rationale behind why staff, who occasionally undertook chaperoning duties, did not need to have a DBS check. However, Mrs Justice Andrews stated that if, indeed, this was the real nature of CQC’s concern, then CQC could and should have made that clearer in the report, rather than implying that there was a legal requirement to carry out DBS checks on all staff, regardless of their responsibilities.

In summary, Mrs Justice Andrews stated 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.
  • Obscured the real concern that might have been the subject of legitimate criticism.

CQC’s process for factual accuracy challenges

Mrs Justice Andrews stated 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.

She also commented that it is understandable that CQC should ask the lead inspector to deal with factual accuracy challenges in the first instance; 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.

CQC’s processes are that, if providers are unhappy with the way in which CQC deals with their factual accuracy challenges, they can commence proceedings for judicial review. However, Mrs Justice Andrews felt this placed a disproportionate burden on providers. She said that fairness required there to be a process within CQC to deal with providers’ legitimate complaints regarding the handling of their factual accuracy challenges, before the report is finalised and published. Mrs Justice Andrews stated that, whilst a further review stage might result in a short delay in publication of the report, this was justified due to the ‘otherwise irreversible damage’ which might be done to the reputation of the provider by publication of an inaccurate report.

Independent review

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 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.

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 response focuses 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 perhaps surprising.

Secondly, Mrs Justice Andrews’ declaration was that CQC should carry out (if requested to do so) an independent review of its factual accuracy decision-making (ie a re-consideration), giving providers a ‘second bite at the cherry’. However, CQC states 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 hold just a single initial consideration of factual accuracy requests (albeit with independent input), or (as the Court ordered) to allow providers to request a review of that initial handling to give a ‘second bite at the cherry’ in cases where the draft report is demonstrably wrong or misleading.

Action for providers

To give themselves the best chance of ensuring their inspection reports properly reflect the position at their services, providers should:

  • Consider asking for copies of the inspectors’ contemporaneous notes at the time of the inspection; these might provide useful information to be referred to in a factual accuracy challenge to the draft report.
  • Provide any additional information CQC requests at the time of the inspection as quickly as possible.
  • Take time to submit a detailed factual accuracy comments log, clearly challenging any points in the draft report with which they disagree.
  • Supply, or offer to supply, further documents along with the factual accuracy comments log, if these counter any points in the draft report which are ‘demonstrably wrong or misleading’.
  • Consider asking for a pre-publication review by an independent person in CQC if the Lead Inspector refuses to change points in the draft report, which are demonstrably wrong or misleading.

Clearly, this is an ongoing development which providers need to monitor.

It is hoped that the case will form an important step in the factual accuracy process, giving more safeguards to providers.

Carlton Sadler is Senior Associate at Bevan Brittan LLP. Email: carlton.sadler@bevanbrittan.com Twitter: @BevanBrittanLLP

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