CQC’s new guidance on the factual accuracy process for draft inspection reports: a chance to have your say - Specialist social care lawyers, Royds Withy King, give us their thoughts.

Did you take part in CQC’s previous consultations regarding their factual accuracy guidance? Have CQC solved the problems you identified with the existing process for challenging draft inspection reports? 

Specialist social care lawyers, Royds Withy King, give us their thoughts.

In October 2018, CQC requested feedback about their proposals for improving their factual accuracy process. The responses indicated that the guidance needed to be clearer. CQC have now drafted new guidance for the factual accuracy process and are seeking providers’ views again to establish whether it fills the gaps previously recognised.

As a result, CQC state that their new factual accuracy guidance:

  • has been shortened and the language simplified
  • will now appear on their website as a web page, making it easier to find and read
  • emphasises that challenges to the factual accuracy of reports must only be submitted on the form provided and within a strict 10 working day deadline (except in exceptional circumstances, for example IT failure), and
  • explains the types of challenge that providers can submit.

Despite CQC saying that a digital solution was a longer term aim, there is no indication of how or when they will introduce this.

The new guidance reiterates that CQC will apply the 10 working day response time strictly. Unfortunately, providers are often afforded less than the full 10 working days because of CQC’s internal delays in sending out draft reports. The new guidance fails to address this widespread problem, which can mean that unless providers ask for the full amount of time, they are not afforded it.

Furthermore, the new guidance also states that CQC will send the draft report and the response form to the appropriate registered person by email. Having recently acted for a provider who experienced delays in receipt of both the draft report and the final report because the inspector sent them by second class post over the Christmas period, this is a welcome change. The use of postal delivery initially prejudiced our client as the inspector did not wish to allow the full 10 working days for their response. We had to step in to ensure that our client was given the full amount of time. Unfortunately, this demonstrates the negative impact that CQC’s method of sending the documents can have. Providers should not have to work to ensure that CQC follows its own procedures.

There is also a continued problem with the transparency of inspections and ratings decisions. The new guidance says that providers cannot ask to see the inspector’s notes from the inspection or details of people with whom they have spoken. However, this page on CQC’s website suggests that they have complied with provider’s requests for specific evidence that CQC relied on in the findings of an inspection report. This seems to be contradictory. CQC do sometimes disclose who provided evidence during an inspection. Many other times, they refuse to disclose their evidence in support of Notices of Proposal to cancel registration, stating that the disclosure does not meet the ‘necessity test’ contained within their Code of Practice on confidential personal information. Exactly how they are applying this test is very unclear. Given the frequency of malicious whistleblowing complaints and the serious effect on services that inspections and compliance action often have, this lack of transparency is a flaw in the system. It also potentially hampers providers’ attempts to take corrective action, potentially putting service users at risk.

Nevertheless, we are pleased to see that CQC have not imposed a word limit or restricted the extent of evidence that providers can submit in support of their responses, as they had originally suggested. This would inhibit providers’ ability to articulate their points and defend their services. We also welcome the “example of possible outcomes from factual accuracy challenges” which makes it clear that the factual accuracy process is only concerned with evidence that pre-dates the inspection.

Overall, the new guidance is not the solution to the inherent flaws in the factual accuracy process. CQC continue to fail to address the real issue – their inspectors sometimes rely on poor quality evidence and draw conclusions that are only weakly supported, which results in inaccurate reports. CQC should concentrate on improving the quality and consistency of evidence and the conclusions drawn from it, which would reduce the need for challenge.

CQC have invited providers and professionals to comment on the new factual accuracy guidance by Monday 28 January 2019. If providers are unhappy with the current inspection regime, they should complete CQC’s questionnaire, which can be found here: https://communities.cqc.org.uk/provider/document-for-review/share-your-views-new-guidance-about-factual-accuracy-process.

Please contact our Health & Social Care team if you have any questions or concerns about the new guidance or any other CQC matters.

If you have any enquiries, please contact Fran Tremeer on:

01225 489773     fran.tremeer@roydswithyking.com