Drink and Drugs News DDN December 2018 - Page 10

LegaL LINe More legal advice at: www.drinkanddrugsnews.com The right to challenge Know your ground when contesting CQC inspection reports and ratings, says Samantha Cox CQC now has the power to rate independent standalone substance misuse services and is currently rolling out its first wave of comprehensive inspections to establish a ratings baseline for future inspections. This is the first time such services are being rated by CQC. Adverse ratings can have a negative impact on the financial and operational viability of provider services and it is therefore vital that CQC get it right. Providers are afforded the opportunity to challenge the content and ratings of an inspection report through official routes set out in CQC guidance. This includes the factual accuracy and rating review processes, which are set out in more detail below. Other potential routes of challenge include complaints to CQC and judicial review. FACTUAL ACCURACY CHALLENGES It is important for providers to challenge factual inaccuracies and misleading comments presented in draft inspection reports, to ensure an accurate picture is communicated with the public. If errors are not challenged, these will be deemed to be correct and any perceived areas of non-compliance with the regulations can lead to the requirement for the production of action plans or, in more serious cases, use of CQC enforcement action. Providers should therefore ensure they read their draft report thoroughly and, where relevant, ensure challenges are raised with CQC through its formal factual accuracy comments (FAC) process. Once a draft inspection report has been received, providers have ten working days to submit any FACs to CQC. CQC provides a FAC table for providers to populate with relevant comments. Providers should be aware that as well as challenging the accuracy of statements, they can also challenge judgements (including alleged regulatory breaches) and ratings through the FAC process, particularly if factual errors have been relied on to inform judgements. Where possible, providers should be supplying evidence to support their assertions. FACs will be considered before the report is finalised and published on CQC’s website. CQC will respond to the provider with a written response to any FACs, and the final inspection report is usually published within a couple of days of communication of its findings. However, there is no clear consistency in when reports are published, and we have seen instances where publication has taken place on the same day the FAC response was sent to the provider and before the provider has had the opportunity to review the response. Ridouts has previously taken issue with this process as CQC’s rush to publish reports can have an adverse impact on providers who are considering further legal challenge, for example through judicial review. RATING REVIEW PROCESS The second, and final, official route of challenge to inspection findings is CQC’s rating review process. This can only be requested after publication of the final 10 | drinkanddrugsnews | December/January 2019 inspection report. Therefore, the report will already be in the public domain before a challenge has been considered. Consequently, for providers who want to avoid misleading ratings being published in the first place, the FAC process is crucial. CQC requires providers to inform them of their intention to submit a rating review request within five working days from the date of publication of the report. Providers must submit their full, detailed request for a review of ratings within 15 working days of publication of the report. The rating review process is very limited in its remit. It does not re- consider any factual disagreements or disputes over CQC’s judgements. CQC is clear that the only grounds for requesting a rating review is that they have failed to follow their processes for making ratings decisions (ie the application of the ratings characteristics to CQC’s findings as displayed in the final report). This process can be difficult to demonstrate and published CQC figures on the success of rating review challenges show that the vast majority of such challenges fail. ‘Providers should ensure they read their draft inspection reports thoroughly and raise any challenges within CQC’s set FAC timeframe.’ STAYING AHEAD To avoid the potential adverse impact of having an incorrect inspection report placed in the public domain, providers should ensure they read their draft inspection reports thoroughly and raise any challenges within CQC’s set FAC timeframe. This will ensure that any disagreements with evidence and judgements are on the record. Even if the FAC process does not produce the desired result, this could assist with any future arguments as to CQC’s judgements and potential enforcement action. Following the receipt of an FAC response, providers should consider whether they wish to pursue submitting a rating review request, depending on the facts of the case. At Ridouts we are experienced in supporting clients with challenges to draft inspection reports, and empower them to challenge CQC when a report is not truly reflective of their service. Samantha Cox is a solicitor at Ridouts, a specialist law firm that has a core expertise in health and social care law, www.ridout-law.com www.drinkanddrugsnews.com