Last month, SSP Health Limited (SSP), a service provider operating GP practices in England, won a judicial review challenge in the High Court against the Care Quality Commission (CQC). The case concerned the fairness of the CQC's complaints procedure and as a result the CQC is said to be considering the recommendations made by the Judge.
Role of the CQC
All providers of health or social care in England must be registered with the CQC and are subject to its inspections. Following an inspection, the CQC publishes a report of its ratings on a four-point scale: Outstanding, Good, Requires Improvement or Inadequate. Of the 21,000 inspections it carried out last year according to its 2015/6 report & accounts, it received some 441 complaints. Its ratings are important both reputationally and practically, as the CQC has the power to put providers into special measures.
Criteria for challenging a CQC report or rating
The CQC’s Provider Handbook currently only allows CQC ratings to be challenged in two ways:
- On receipt of a draft report, a service provider can challenge the factual accuracy and completeness of the evidence, findings and ratings within 10 working days.
- After a report is published, a service provider can seek a review of the rating on the ground that the CQC did not follow the proper process – not on the ground that the judgments by the CQC were wrong.
SSP's legal case sought to challenge the limited nature of the latter handbook provision.
The case in point: Seaforth Village Surgery
On 11 November 2014, the CQC carried out an inspection of one of SSP’s practices in Liverpool. A draft report was produced and the overall rating was "Inadequate".
SSP submitted a response to challenge the accuracy of the report. The CQC’s Lead Inspector amended some, but not all, of the challenged wording and maintained the overall rating of Inadequate. Despite the senior medical practitioner at the Practice asking the CQC's Chief Inspector of General Practice to delay the publication of the report so that his concerns could be discussed, the CQC proceeded to publish its final report. The CQC argued that the proper process had been followed because SSP had been allowed to comment on the draft reports.
SSP then requested a review of the rating in relation to the Practice. The CQC’s ratings review manager declined this request because the complaints made by SSP related to the findings of the report and not a defect in the process which, according to the Handbook, is the only ground permissible for a ratings review. As a result of the "Inadequate" rating, the Seaforth Village Surgery Practice was placed into special measures, meaning that it had to improve its service within 6 months to avoid enforcement action.
SSP's lawsuit stated that it had made various challenges to the factual accuracy of the draft CQC report which could have been checked by the regulator. However the appropriate checks were not made and the CQC’s original damaging findings were maintained each time. For example, the draft report stated that the Practice did not keep a register of elderly patients, however SSP asserted that they did have such a register and detailed where it was kept. The CQC did not check whether there was a register as claimed by SSP but maintained within the final report the assertion that there was no such register.
Although the CQC found significant improvements at Seaforth on its next inspection and gave an overall rating of "Good" in its subsequent report, SSP submitted that the Inadequate rating had caused significant damage to its reputation. Primarily the case rested on the CQC’s decision to refuse to review the Inadequate rating.
The judicial review decision
In relation to the specific factual challenges made by SSP, Mrs Justice Andrews concluded that it was unfair for the CQC to maintain their original finding without making appropriate enquiries. She stated that:
“…the regulator has a choice. It can either accept the word of the inspected body and make appropriate adjustments, or it can ask to see some evidence…or it can adjust the draft report to state, accurately, that it saw no evidence of that matter at the time of its inspection but that it had been informed subsequently that such evidence existed…What it cannot do is make adverse findings that something does not exist if the regulated body tells it that it does, and it does nothing to test that assertion.” (Emphasis added)
So what can a service provider do if the CQC wrongly refuses to change its findings?
The current scheme provides that the CQC’s Lead Inspector will decide whether to amend the draft report following the service provider’s response. Mrs Justice Andrews said that she was “…not persuaded that it is fair that the Lead Inspector should be the sole arbiter of whether any changes should be made.”
Instead, Mrs Justice Andrews stated that an independent person within the CQC itself would be well placed to resolve the grievance and that, in this case, “…procedural fairness required the CQC to undertake a review of its response to the proposed factual corrections… There is little point in giving someone an opportunity to make factual corrections, if there is no procedural mechanism for safeguarding against an unfair refusal to make them.”
While instances of substandard service such as that revealed by the Mid-Staffs enquiry suggest there is a place for an independent regulator of health and social care, many service providers feel that the CQC lacks accountability and that they are powerless to challenge CQC findings. Coupled with the potentially devastating impact of an adverse CQC finding, service providers can understandably dread the day when the CQC “comes knocking”.
This case should provide reassurance to healthcare providers. The comments of Mrs Justice Andrews do not compel the CQC to make specific changes, but they are likely to lead to a fairer review mechanism for service providers. Indeed, if appropriate changes are not made despite clear recommendations, the CQC would be in a weak position if they were challenged in future.
Service providers should respond swiftly upon receipt of a draft inspection report and challenge any inaccuracies. Should the CQC refuse to review its findings, service providers could refer to this case to argue that an independent review should be conducted before the report is published.
Let’s hope that the steps taken following this judgment will ensure that those providing essential services are treated fairly by their regulator.
This article for appeared in the October issue of Caring Time.