28/08/2019

In an article published on 22 August 2019, HSJ has revealed that at least three NHS providers successfully challenged the Care Quality Commission (CQC) in the 2018-2019 period. In each situation, the NHS provider used the CQC factual accuracy challenge process to improve their overall rating.

These findings were obtained by HSJ following a freedom of information request and are important for providers in two respects. The first is the fact that successes can be achieved through utilising the CQC factual accuracy process and the second is that it demonstrates that providers should not be afraid of asking their regulator to recognise excellence.

Utilising the Factual Accuracy Process 

The success of the three named NHS Trusts confirms that which those of us who support and advise CQC-regulated providers already know; that the factual accuracy process can and does work.

It is not an easy process, requiring as it does a forensic analysis of the concerns raised by CQC compared with the underlying evidence base held by the provider, but it is one where the effort correlates to the result obtained.

In April 2019, CQC revised the process through which providers challenge the factual accuracy of draft inspection reports. Amongst the revisions CQC now requires providers to complete a specific online form, whereas this was previously only ‘recommended’ and providers were able to provide representations in letter form instead. More controversially, CQC initially imposed a character limit of 325 characters (approximately 50 words) for each point a provider wished to make. This was quickly extended to 975 characters with confirmation that providers could continue into the next row should the character limit not be sufficient to make their point.

Whilst the new formatting can seem restrictive, and it certainly was with the initial character limits, the amendments ensure that it is in fact available to providers to expand on their points as necessary. Being expansive however should never slip into the long-winded and inconsequential. Each point made must relate directly to an aspect raised within the draft report and must be supported by information and evidence available at the time of inspection. If it does not, it will be rejected by CQC and the point will not be upheld.

The importance of utilising the factual accuracy process to challenge factual inaccuracies is underscored by the lack of any reasonable alternative.

The threshold for a High Court injunction to prevent publication of an inspection report is almost prohibitively high; in that providers must be able to prove that the inspection report is ‘riddled with errors’.

Post-publication, providers face dual barriers. With the report already in the public domain, the provider will suffer the reputational and financial impacts of negative and incorrect information being read by commissioners and the public alike. If providers do decide to challenge, the remaining option is a post-publication ratings review.

Ratings reviews are not a second opportunity to challenge judgements made during the inspection. Requests for a ratings review will only be granted where the provider can show that CQC made an error in aggregating the ratings. This is incredibly difficult to prove because it relies in large part on the inspector’s exercise of discretion, as well as their reasonable interpretation of CQC’s rating criteria.

The statistics speak for themselves. In the year to 30 June 2019, of the 861 requests for ratings review, 612 (71%) were closed by CQC on the basis that the provider had no grounds to make the request. 103 (12%) were reviewed with no change to the ratings, and only 24 (2.8%) had their overall location or provider rating increased.

Where providers, both public and private, know that a draft report is factually inaccurate and that they have the evidence to prove it, they should follow the example of the Trusts identified by HSJ and utilise the factual accuracy process to the best of their abilities.

Recognising Excellence

The second finding of note within the HSJ article is the nature of the results achieved. Specifically we note that both St Helens and Knowsley Teaching Hospitals Trust and Salford Royal Foundation Trust were given an overall “good” rating in their draft reports. They submitted their factually accuracy challenges and achieved “outstanding” ratings in their final reports. Significantly for Salford Royal Foundation Trust, this meant that they were the first acute trust to retain “outstanding” over two inspections.

Even within provider organisations, there can be a misperception that the factual accuracy process is only used by desperate providers determined to prevent the public from learning concerning truths about their poor standards of care; that it is a mechanism of shame, only used by those with something to hide. It is not.

The factual accuracy process is the primary mechanism through which any provider can and should legitimately challenge their regulator, where the provider considers that the findings and subsequent decisions are incorrect. It is a tool that CQC has given to providers as a necessary part of achieving a fair outcome. As such, it applies just as much to recognising excellence as it does avoiding an “inadequate” or “requires improvement” rating.

Providers with “outstanding” ratings are very proud of their achievements, and justifiably so. They are members of an exclusive club (making up, for example, only 7.8 % of NHS healthcare organisations and 3.6% of  nursing homes according to CQC’s ratings data from August 2019).

CQC emphasises the importance of outstanding providers to the sector. In their publication ‘Celebrating Good Care, Championing Outstanding Care’, CQC state: “We want to celebrate outstanding care where we have found it and share good practice for others to learn and improve from it”. The consequence of an “outstanding” rating, therefore, is not simply a well-deserved award to the provider but an opportunity for the sector to learn from an example of excellence.

To commit to obtaining an “outstanding” rating, providers must commit the time, resources, energy and finance to strive consistently for best practice. Where they consider they have evidenced this and the draft inspection report does not reflect their work, it is understandably a huge disappointment and something the provider will wish to remedy. In some cases, CQC may need to be informed and indeed educated on what it is that makes the provider outstanding.

It is significant that we are seeing more providers doing just that; not being simply content with a “good” but wanting to prove that they are “outstanding”.

Doing so involves the same forensic process as for any factual accuracy challenge and a successful outcome means the same for any provider. The provider obtains the rating they deserve, which reflects the reality of the service on the day of inspection. However, there is an additional benefit for the regulator and indeed the sector as a whole. They have a new example of best practice, of excellence to be championed, to be shared and replicated.

By challenging their ratings through the factual accuracy process, St Helens and Knowsley Teaching Hospitals Trust and Salford Royal Foundation Trust have not only obtained the ratings they deserve, reflecting their hard work and commitment, but have also provided this sector with two new examples of excellence through which others can learn.

Any providers who want to question or challenge their rating can contact our regulatory team at Bevan Brittan for expert advice on what is required to achieve success.