Mental health law briefing 233 – CQC factual accuracy comments: No longer the end of the road
One of the frustrating features of the CQC regulatory process has been that factual accuracy comments are submitted to, and considered by, the inspectors who made the judgments in the first place. The only internal review process thereafter was the quality review process, which the CQC limited to a review of process, not facts. Accordingly, very few quality reviews succeeded, and the only remedy for providers whose factual accuracy comments had been wrongly decided was to seek judicial reviews.
In a landmark judgment, the High Court has found that to be unlawful. The case of R (SSP) v Care Quality Commission, concerned an inspection of a GP practice. The CQC inspected and in accordance with its usual process, issued a draft inspection report inviting comment. The provider submitted corrections but only two minor changes were made. The Court went on to find that the CQC had wrongly rejected a number of the provider’s factual corrections. The Court admonished the CQC stating that it
‘cannot make adverse finds that something does not exist if the regulated body tells it that it does and it does nothing to test that assertion’.
That itself will be welcome to providers who have been in similar circumstances.
More significantly, however, Mrs Justice Andrews held that where a provider wishes to challenge the way in which an inspector has decided to respond to comments, or the failure to remove inaccurate fact-findings or to cure misleading impressions created by the report, it would be disproportionate to require the provider to start proceedings for judicial review.
Accordingly, the Court held that the CQC must:
‘carry out an independent review of a decision made in response to comments in the Factual Accuracy Comments Log, on a request to so by the inspected entity, if the ground of complaint is that a fact-finding maintained in the draft report is demonstrably wrong or misleading’.
The Court left open whether a right of review would extend to other scenarios.
It remains to be seen how the CQC will discharge the duty. The obvious option would be for the CQC to extend the scope of the existing rating review process.
The CQC has struggled to achieve consistency in its judgments and the legal duty to carry out an internal review on request may well help to address that. It will certainly be welcome news for any providers who have faced the frustration of submitting corrections to the CQC, only for them to be unreasonably rejected.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.