Challenge a CQC Draft Inspection Report

The following article focusses on the regulator the Care Quality Commission (CQC) but the matters discussed below may also have relevance to CIW and Ofsted regulated services.

We advise and Represent care Homes and Care Establishments

Poor Reports and Bad Inspections

An email arrives from the local CQC inspectors with an attachment containing a draft inspection report. The email informs the recipient that any corrections (pursuant to the CQC Factual Accuracy Checks protocol) should be brought to the attention of CQC within 10 days. What do you do?

A failure to respond within the prescribed time will generally lead to the report being published on the CQC website. After that it is very difficult indeed to have any alterations made to it. Therefore, a care home or care organisation should actively examine the draft report, identifying any inaccurate inclusions, any inferences that have been drawn that are incorrect, and any inspector’ judgements that are erroneous.

When inspecting a home, inspectors will want to see that the home caters well for its residents. Off the shelf packages brought from consultancy firms will need bespoke amendment to ensure that they are fit for purpose. A number of our clients have been criticised by CQC for adopting generic and inadequately referenced policies and care plans (that were obtained from online consultancy firms) instead of writing their own materials that are bespoke to their own care home. While many of the products available are helpful they are not a replacement for considered thinking and proper assessment. A failure to properly evidence individualised care plans and policies that are suitable for the client group will likely lead to criticism.

Our clients have shown over the years that some CQC inspectors are insensitive to the difficulties that a care home or care organisation can face, by making sweeping statements that are not borne out by the evidence available. Where evidence exists at a care home that entirely rebuts the facts relied upon by the CQC inspectors, such evidence (that is credible and robust) should be presented to them, so that any falsehoods or misunderstandings can be rectified before the final publication of the report.

We have been informed by clients that inspectors, in the past, have far too often appeared to have ignored written submissions (following an inspection), preferring their own “eye witness” account rather than strong evidence to the contrary of what they think they have found. While matters will always be fact specific, for example, if an inspector witnesses poor practise, that may well be difficult to counter. But where something turns on data that is available and has not been seen, the inspector should ideally have regard to it before finalising a judgement. 

One example is where an inspector makes a statement that can easily be refuted, such as the suggestion that the care home did not have a specific policy, or care plan, or similar, when it was not clearly asked for or where there was a misunderstanding, leading to the inspector not having had sight of it. CQC inspectors should allow for this type of misunderstanding, especially as staff find inspections to be stressful and will not always be at their best. There are regrettabky occasions where an inspector says that, “I did not see a specific document”. But if they did not ask for it, the failure could be said to be theirs. Proving that this was what occurred may not be a simple matter.

Where an inspector is being particularly difficult or prickly during an inspection, we recommend that you write a contemporaneous note, and email it to yourself as close in time as possible, to prove that your note of dissatisfaction was not contrived after the event. If an inspector is hampering the conducive exhchage of information, it may be necessary to raise a complaint during the inspection. But this is not something that is easy to do and come care homes feel that there will be retaliation if they take such steps.

What about the situation where the evidence is supplied but the inspector states that, as it was not shown to them or made available to them at the time of the inspection, the evidence will be disregarded. We consider that to be an erroneous approach in many situations. If the care home or care organisation takes immediate remedial steps to put in place a different and safer approach, the inspectors can and should ideally make reference to the very quick turnaround. Remedial steps would not necessarily alter the fact that fault was found at a given point during the inspection, however, and so a rating may not be open to challenge.

In our view, an inspector should make reasonable requests of someone with sufficient knowlegde to furnish the inspector during the inspection with the relevant information, be it oral or documentary form. In the absence of same, it may be possible to challenge the rigid and closed-mind approach of the inspector, and the conclusions that they drew in order to formulate a judgement. The decision-making tree that the inspectors uses is reliant on data being accurate and reasonable inferences and judgements being drawn. Where a judgment or inference is wrong it may be open to challenge. Where the inference or judgement is perverse or unjustifiable there may be more scope to challenge the inspection process by way of a later judicial review, if the CQC does not remedy the defects in the draft report. 

Owing to a legal challenge that was brought by way of judicial review a few years ago, by a GP practice that was regulated by CQC, new and indpendent procedural procedural fairness safeguards have been adopted. The case determined that CQC’s approach to evaluating factual accuracies needed to have a greater level of independent scrutiny. The CQC has since improved the factual accuracy check protocol.

Regrettably, inspection reports take a while to compile and CQC’s resources are finite, with pressures on inspectors to deliver an inspection process within the prescribed protocols. It must be quite irritating to be challenged by a care home or care organisation, and inspectors should not take things personally. Unfortunately, a number of our clients have suspected and on occasions been able to evidence bias. In short, it is unlawful for an inspector to show bias when they are assessing a care home or care organisation. But proving bias is not easy. 

When an inspection takes place, notes should be taken where possible for the requests for information that inspectors make of staff. The inspectors are fully entitled to ask staff members questions that would lead to answers that should be within their knowledge. This is in part how an inspector checks that the assurances of the operator or managers are accurate. However, on occasion, our clients have informed us that inspectors have asked a question of a very junior member of staff who did not understand the question and who therefore, sometimes out of panic, committed to an answer that was incorrect, in hindsight. This is not an easy thing to overcome. However, the staff member should be asked to write a recollection close in time to the incident concerning the inspector, so that contemporaneous accounts can be relied upon should matters need to be escalated. In some instances, it will be one word against another and the junior member of staff might not be robust enough to be a witness longer term. Nevertheless, the account of the carer may build up a picture over time that certain inspectors have an approach that is not conducive to good reporting. If sufficient evidence is compiled over time, it may assist in making a complaint against an inspector who seems to be working against the interests of the care home or care organisation, that is not justified within the policies of CQC and the spirit of inspections generally. Thankfully, this is a relatively rare occurrence, but when it occurs it can be very upsetting and undermining. It may be necessary to debrief staff to prevent them from leaving their employment, if they feel bullied by the inspection process. Some feel this way even where there was no bullying. It is all about perception.

In defence of inspectors, however, they are there to take a snapshot of the care home or care organisation in a given moment. Where they observe poor practice they have a duty to report it. In one inspection that we were aware of, the inspectors visited a care home and observed the practice of a registered nurse from a distance. The nurse became self-conscious and flustered, even though the inspector was watching from a distance. The nurse was going about a drug round and had retrieved some controlled drugs from the secure drugs cupboard to administer to a resident. In her flustered state, she went to the resident with a number of drugs while leaving unattended the controlled drugs, leaving them on top of the drugs trolley for a couple of minutes. The inspector quite properly held that this was contrary to the safe administration of medicines, and the incident was used to draw inferences and a judgement that the care home did not operate a safe system of drug administration. It is difficult to see how one could put up much of a defence to that, save to explain that it was as a result of being observed by an inspector that led to an otherwise fully competence nurse falling into error. Such explanations are unlikely to have much of an impact on the objective assessment of such a serious failure to safeguard patients who might have walked down the corridor and consumed them. If that may sound a far fetched likelihood, consider the case of a care home resident, in which cleaning tablets were left unattended in a corridor and were consumed by a resident who thought they were sweets. The resident was found foaming at the mouth and later died of related complications, namely aspiration pneumonia. The home was ordered to pay £270,000 fine by the Scottish courts. (For more information, see the case of Andrew McConnell.) Such events may be rare but in a care establishment there are very vulnerable people whose decision-making and safety awareness may be impaired such that the risk of coming to harm from such adverse events is much greater.

What upsets carers, care home and care organisation managers, however, is the often vague reference to a carer or patient, so making it close to impossible to be able to verify the criticism. This seems entirely unfair and it may be open to challenge. One may need to request disclosure of the inspectors’ notes to examine how detailed their contemporaneous documents are but CQC has reduced the opportunities for this in recent years. If diclosure can be obtained, the notes can be helpful to bring challenges against the inspectors’ decision-making process. Where an inspector makes vague references that make it impossible to take action the inspector might be correctly criticised for the approach that they have adopted. It is especially concerning when an inspector raises a safeguarding concern or an incident that should be treated as safeguarding, without providing the care provider with appropriate and timely detail. It is not fair on a care home to submit a draft inspection report weeks later, without having brought the same matter to the attention of the care provider, close in time. A formal complaint may need to be lodged when this occurs. 

Where the inspectors have formed an erroneous view of matters that, in turn, lead to a rating that is unjustified, the rating should be challenged, albeit on solid grounds. As mentioned above, remediation that is put in place after an inspection, relating to a one-off incident or never-event that was observed by an inspector, cannot generally be ameliorated sufficiently to justify a less critical inspection report than is proposed, albeit it has been possible on occasions. But where there are matters that are obviously wrong or there was unfairness in the inspection process, it may be possible to challenge a rating. Indeed, clients we have asssisted have in the past had some occasional success with this over time but it requires a great deal of evidence and analysis to achieve this, and also sufficient investment by the care provider to ensure that all evidence is made availabke in a suitable form, that is credible and trustworthy, rather than just leaving it to the lawyers. It is the care organisation that must evidence their position, assisted by lawyers who can put the material and submissions into a meaningful document. 

An independent person from the inspection team must review any replies made by the care home or care organisation, where the care home requests it. Some CQC regions build in an indepenent element of the review, in our experience, where there has been criticims of the local inspectors. The indpendent person may decide to uphold the inspection report findings or make amendments, or withdraw certain elements altogether. They might also change the rating. To achieve this requires a persuasive account of what happened and why, in order to displace the erroneous recollections or findings of the inspectors. We can provide guidance an support in how to do this.

In summary, while inspections are not an easy thing to go through for staff, there is an important safeguarding aspect to the inspectors’ approach. They have a set of criteria they are working to, and will focus on certain aspects. If they fail to ask for a relevant document it should be sent to them after the inspection, if they misunderstand an event that took place, a statement from witnesses or contemporaneous records might be sent to the regulator on the day of the inspection. An evidenced submission challenging the draft report should also later be sent. Only robust and plausible evidence will be accepted where an inspector has formed a view of what has occurred during an inspection, which the care provider is adamant is wrong. Clear evidence rather than an airing of frustrations needs to be compiled otherwise the regulator will dismiss the challenge. 

Regulators often cite Nice Guiedlines as the exemplar model of how things should be done and it is therefore not going to be an easy task to persuade an inspector that there is another equally good way of doing something. The care home or care organisation should follow the Nice guidelines on best practice. Other model policies and standards need to be a baseline quite often. However, there are occasios where an inspector will have an idiosynratic view of how something should be done, and which the care home or care organisation disgrees. This can cause uneccesary confict. On many occasions, inspectors have not made allowances where there is more than one way of doing something. Yet, there can often be in care literature more than one approach, all of which are acceptable. This is an area that can lead to comical outcomes on occasions. 

In once case, a few years old now, in which the lawyers at Care Home Defence Service were involved, a regulatory inspector insisted that a care organisation did a partcular task in a specific way. Albeit frustrating, and albeit the care home sought to inform the inspector that the care home’s way was entirely acceeptable and supported by peer-reviewed literature, the care organisation felt forced to adopt the practice recommended by the inspector, if only to avoid critcism. A year later, that inspector moved on and a new inspector was appointed. The new inspector demanded to know why the care home was doing the very same task the way it was by that time being done, only to be told by the inspectot that they should be doing differently – the very way it was done before the first inspector intervened. And so it goes. Unhelpful, and unthinking, perhaps, but not good for anyone in the long term, especially care home residents or clients. On occasions, some inspectors (not too often, thankfully) do not seem to understand that it is entirely acceptable for there to be a healthy difference in the provision of care between the various healthcare establishments that they regulate, and that all of the establishments can be simultaneously correct albeit not uniform. 

Responding to an inspector on certain subject matter may therefore need to be done with exceptional care. While over time the regulator’s assessment systems are arguably becoming fairer, it is not always the case that fairness prevails. Where the process of corrections leads to a wholly unjustifiable inspection report outcome it may be necessary to apply for permission to judicially review the inspectors’ decision-making process. 

Note that case law holds that any judicial review application must be brought promptly and in any event within three months. The date that the three months runs from has been held (in a similar Ofsted case, see footnote 1 below) to be the date of the draft inspection report being sent to the care provider. However, until one receives the final inspection report, which might in some situations take longer than three months, there could be an argument that it cannot run from the date of the draft report’s disclosure if the final report states something entirely different but is still wrong. (Note that bringing a judicial review application promptly could in some circumstances be said to be merely a few days, rather than the full three months)

Remember to always ensure that the email account that CQC corresponds to is checked regularly, and at least daily, to ensure that nothing is missed. Albeit extensions can be given in some instances, the request must be accompanied by evidence to sufficiently justify the extension. Lame excuses will not suffice. CQC is mandated to publish inspection reports in a timely fashion. If the extension has not been granted by day 10, a submission should still be sent to CQC within the timeframe, so as not to miss the opportunity to comment. Some factual inaccuracies might be trivial but some culd have lasting damage, as outsiders wanting to evaluate the suitability of a home for new admissions, whether it be family members, social workers or clinicians, may be put off by reading the contents of a finalised report. Note that extension applications must be made in writing. Do not rely on conversations as misunderstandings can occur and CQC may not honour an apparent agreement where the terms are clear that extensions must be applied for in writing. Further, be careful what you commit to when conversing with inspectors. Inspectors are now encouraged to call care providers to discuss draft reports. Everything disclosed by a care provider can be taken into account, and a flippant, casual or inaccurate remark might unintentionally undermine the care provider’s position. Nothing is off the record! 

The inspectors at CQC will use the Key Lines of Enquiry KLOEs system to seek to arrive at a fair, balanced and proportionate decision, using the best evidence available, when writing the inspection report. They will also have regard to the Factual Accuracy Check (FAC) protocol before finalising the final version. We can advise on these matters and assist in drafting a reply, a request for time, and compiling evidence to submit in support of any challenge. Note that the factual accuracy process is separate from the ratings review process, which is undertaken post-publication of the ‘final’ inspection report, and a review can be requested where the FAC process has not led to the outcome that the care home thinks is just.

Care Home Defence Service represents care homes and other care establishments in challenging CQC, CIW and Ofsterd inspection reports. To see how we can assist you, give us a call without obligation and in strict confidence, or use our Contact Form.

Footnotes

i. R (Dawatul Islam UK & EIRE) v OFSTED (2016) unreported but summary available on Lawtel – 3 months starts from when first put on notice of, which can be pre-publication of the final inspection report.