Newsflash: Will the CQC factual accuracy process now result in more changes to draft reports?

Potentially….

The recently published outcome of the Judicial Review where GP Provider SSP Health Limited challenged the CQC’s failure to address all matters raised within their factual accuracy response has resulted in a clear and unambiguous statement from the Court that the current CQC process may be somewhat lacking.

The Honorable Mrs Justice Andrews DBE sitting in the Administrative Court found 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 an inspected entity, if the ground of complaint is that a fact-finding maintained in the draft report is demonstrably wrong or misleading”

Crucially, therefore, for providers across the board, whether they be GPs, dentists, care homes or an NHS Foundation Trust (to name but a few), if as a provider, you remain dissatisfied with a CQC response to your factual accuracy comments and matters upon which you have clear evidence to the contrary of that stated within the draft report remain erroneous or misleading, then this judgment is importing into the CQC process, a new level of challenge. Someone independent of the process within CQC will be required to assess the replies to the factual inaccuracy process. This will apply where you tell CQC they have got it wrong, or that there is evidence available they have not called for that would correct a misleading impression given in a report, and CQC do not either call for the evidence or correct the misleading implication in the report.

Previously, if the CQC did not accept a provider’s submissions on the factual accuracy response, and intended to publish their report in any event, the only way for a provider to prevent this was by way of injunction via the Court system.

However, a word of caution. It is vital that all factual accuracy challenges are made at the outset, within the initial 10 day timeframe, as the independent process that will now be available will not be an opportunity to expand or add new factual accuracy challenges that were not made at the outset.

The new independent stage is, however, an opportunity to ensure that a provider’s factual accuracy submissions are taken into consideration, and if the CQC fails to adequately respond to them and amend the draft report accordingly, the provider should not be prevented from elaborating on their earlier submissions in order to demonstrate any errors or statements that are misleading.

A key concern of the Court was that the lead inspector in effect was the “sole arbiter” of whether any changes should be made, given that the ratings review process (which follows the factual accuracy challenge), was a distinct process based solely on process not on evidence.

The Court stated that this independent review process should not take long, and that a short delay in publication of the report when fairness requires, might be necessary, to prevent irreversible damage to the reputation of the provider that may ensue and will be unfair if the report is wrong.

Whilst this judgment relates to an inspection report generated following the inspection of a GP practice, the principles set out by the Court are sound and logical ones that will apply to any inspection report produced by the CQC and this judgment is therefore of equal importance to all Providers.

Hempsons Partner Adam Hartrick and Associate Philippa Doyle regularly support both NHS and social care providers in challenging CQC reports and decisions and have seen examples of cases where CQC simply do not get it right to the detriment of providers. This judgment is very welcome news for all Providers.

Hempsons can support Providers through the process ensuring all factual accuracy contentions are clearly and concisely put; we are happy to discuss fixed fees for doing so, to include an initial review and discussion to establish if there are legitimate points which must be put within the 10 day window. We can now support you in following through to ensure that if appropriate you avail yourself of this new process articulated so clearly by the Court in this decision.

For further information please contact Philippa Doyle or Adam Hartrick.