Legal Line

‘will CQC catch us out?’ With the proposed move by CQC to short-notice inspections coming into force this month, how much leniency will be allowed for one-off issues?

Read the full article in May DDN

Nicole Ridgwell answers your legal questions

CQC’s intention to begin short-notice or unannounced inspections of substance misuse service providers will be a significant change for the sector, which has previously had notice of inspectors’ visits and been able to prepare.

It comes at a time when the sector is acutely aware that CQC is watching. In the November 2017 briefing ‘Substance misuse services: The quality and safety of residential detoxification’, CQC set out its significant concerns from the first inspection cycle under the new regime. The headline summary was that CQC took action to require 72 per cent of providers to make improvements due to breaching regulations and failing to meet fundamental standards of care.

Inspections are crucial to CQC’s understanding of the services it regulates. The less notice they provide, the less time providers have to prepare. This will understandably cause some nervousness and it may be tempting to request leniency during the period of adaptation.

Unfortunately, however, any such requests are likely to fall on deaf ears for two main reasons.

Firstly, short-notice and unannounced inspections have become increasingly common throughout the regulated sectors in the past few years. CQC gave no leniency to, for example, GP surgeries and dental practices when they introduced unannounced inspections and will feel no need to act differently with this sector.

Secondly, inspections are intended to capture an ‘on the day’ assessment of a service. Inspectors understand that the more notice given to prepare, the less likely that what they see is identical to normal practice. Short-notice inspections reduce the opportunities available to providers to ‘improve’ their service, and what the inspectors see is more likely to accurately reflect its normal running.

To expect inspectors to be more lenient because the provider does not have this extra notice period will be met with a less than positive response. That said, the rules of challenging the resulting draft inspection reports remain the same and it is just as important to challenge that which is not factually accurate.

We regularly view draft inspection reports which use isolated or one-off issues to improperly extrapolate a conclusion of systemic failure. This presents a false assessment of the service, and must be challenged through evidence that shows that a one-off issue is not representative of the wider service.

In summary, providers should not be asking for ‘leniency’, but should instead be demanding that CQC exercise reasonableness and proportionality when assessing those one-off issues. To do otherwise would be to publish a misleading report – something which is of no benefit to the public, the service or the reputation of the regulator.

Nicole Ridgwell is solicitor at Ridouts Solicitors,