Nicole Ridgwell of Ridouts answers your legal questions.
Can I challenge the results of our CQC inspection? And if so, how?
As previously reported in DDN, the July 2015 implementation of new comprehensive CQC inspections has brought significant regulatory change to the substance misuse sector. Feedback from the frontline is that this first inspection cycle has been predictably challenging.
At Ridouts, we see inspection reports in which policies are strongly criticised in one location while passing without comment in a sister service. The fundamental problem appears to be the variation in training and knowledge of CQC inspectors. Clients have described inspectors demanding evidence of compliance with NHS standards to which services are not subject, and criticism of services choosing a detox route differentiating from NICE guidance, not listening to the provider’s cogent explanation of why they use a different but equally recognised tool for their client group.
Unfortunately this was foreseeable and, by choosing not to publish ratings at this stage, CQC tacitly acknowledged that this set of inspections was a trial run. That however is cold comfort to the providers faced with critical reports, enforcement action and damaging media headlines.
Providers need to feel confident in their right to challenge. Without challenge, CQC and the public will presume the provider accepts the content.
Preparing for the possibility of challenge is important. In theory, there should be no surprises when a provider receives a draft report. There should be sufficient feedback during the course of the inspection to headline areas of strength, as well as areas for improvement.
While feedback sessions are not an opportunity to debate findings, they should enable staff to begin gathering evidence to challenge and identify areas for improvement, with a view to responding to the draft report. Where feedback is insubstantial, providers must request further detail.
On receipt of the draft report, providers must scrutinise it line by line, identifying not simply factual inaccuracies but negative or imprecise wording and vague criticisms. Although this may seem laborious, it is important to lodge all valid objections. Should matters progress to enforcement action, it will be much more difficult to retrospectively challenge something about which providers were initially silent.
CQC guidance implies that providers can only challenge facts. That is wrong as a matter of law. CQC must take into account all written representations about the inspection process and the content of the report.
Providers in all sectors are intimidated by CQC and often feel powerless to exercise their rights. Successful challenges however not only correct falsehoods for individual services but also feed into CQC’s reflections on their inspection process. This contributes to improvements in inspection training, to the benefit of your next inspection and CQC’s understanding of the sector as a whole.
Nicole Ridgwell is solicitor at Ridouts LLP, a practice of health and social care lawyers, www.ridout-law.com.
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