Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Those providers who have sought to challenge Care Quality Commission (CQC) will have quickly come to realise that very little protection is given against such unfair judgements and whilst CQC are clearly not blind to their own potential failings, and will listen if a sensible approach is taken, there are few procedural safeguards in place should CQC appear to abandon fairness. A new case, which has just been heard, has given some very helpful support to providers who believe they are being treated unfairly in the context of CQC inspections.
SSP Health Limited (SSP), a registered provider operating several GP practices, had been inspected by CQC who produced draft findings that the service was ‘inadequate’. SSP requested corrections to be made to the report prior to publication in line with the factual accuracy procedure in the CQC Provider Handbook. This was refused by CQC, who proceeded to publish the report and its ‘inadequate’ rating.
Subsequently, SSP was refused a review of the ‘inadequate’ rating (requested after the publication of the report), on the basis that their request did not allege that CQC had failed to follow the process in the Handbook which is, on the face of the Handbook, the only ground available to do so.
SSP sought judicial review of CQC’s approach on the grounds of procedural fairness.
The lessons to be learned from the case are:
- a debrief of those interviewed by CQC should happen as a matter of course after an inspection to identify areas where immediate follow up may be appropriate;
- if approached correctly, CQC should be amenable to consider independently of the inspection team, complaints about the inspection approach;
- the threat of an 'inadequate' rating being published could be challenged if there has been procedural unfairness on CQC’s part;
- swift, proactive management of your response to any potentially adverse inspection report is required; and
- well informed, legal advice can make a significant difference to the outcomes achieved from any challenge.
The judge in the case, Her Honour Mrs Justice Andrews, made some telling comments in her judgement about the approach to fairness that CQC ought to adopt in the conduct of their regulatory role. For example, on the issue of complaints about the conduct of inspections, she stated:
“In order to be fair, there ought to be an effective process for resolving such complaints swiftly and fairly. It must be robust enough to ensure that legitimate complaints will be upheld.”
This is, of course, all that most providers are seeking. No provider should be seeking to raise spurious issues (not least because of the adverse impact that will have on its own reputation with CQC). Most know when their services are not as they should be, and have no more interest in pursuing unfounded complaints against CQC than CQC have in making inaccurate findings.
We have advised numerous clients that the system of publication of service ratings, prior to there being an adequate independent review of the findings, is unfair in a way that might be susceptible to judicial review. This judgement lends some weight to that conclusion. It will have to await another case before we can say definitively that publication of an 'inadequate' rating could be restrained by injunction pending the outcome of a full judicial review hearing, but we have previously advised clients in those circumstances and have successfully “warned off” CQC from such publication, without having to commence proceedings.
If there is a legitimate concern with an inspection process, it is vital that early advice is taken because the steps that can be taken rapidly diminish with the passage of time, and therefore the sooner you can engage with the process, the better. We would go so far as to say that, after every inspection, there ought to be a debrief with the team at the service at which there is a specific record made of any outstanding information that was requested but could not be immediately provided, so that it can be provided and further explanations given as to any potentially inadequate answers that were given to questions raised by the inspection team.
Every opportunity to correct factual inaccuracies should be taken. There are different approaches to how factual inaccuracies can be pointed out, but we are confident that we have successfully identified some of the more effective ways in which this can be done to gain corrections.
Our experience has also meant that we can assist in pre-empting adverse rating outcomes by helping providers to engage with CQC at the appropriate level (including through the trade bodies that we work in partnership with), whether by formal or informal approaches.
It was noteworthy that, in this particular case, the provider had not sought legal advice and, even when legal advice was sought, it was criticised for having a muddled approach to the issues. Clarity of thinking in this area can only come from experience, which is something we are able to offer. Anthony Collins Solicitors LLP has achieved a very high success rate in terms of challenging ratings, getting factual accuracies corrected and averting ‘inadequate’ ratings being imposed for a wide range of clients over the past 12 months.
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