Care home loses legal battle with CQC to prevent publication of inspection report
The case
Following a routine comprehensive inspection, Ideal Carehomes (Number One) Ltd received a draft report from CQC which proposed an overall rating of inadequate. The regulator had also issued warning notices relating to breaches of the HSCA Regulations and a notice of proposal to vary the provider’s registration.
The provider made factual accuracy comments on the draft report, some of which were incorporated in to the final report. However, the provider remained unsatisfied with the outcome and applied for judicial review of CQC’s decision to issue an inadequate rating and an interim injunction to prevent CQC from publishing the report online in the meantime.
Responding to inspection reports
Upon receipt of a draft report providers who disagree with the findings are able to challenge comments made by the inspectors where it can be shown, with evidence, that they are factually inaccurate. After publication of the report providers also have a further limited opportunity to challenge the ratings in a ratings review if it can demonstrate that CQC has not followed its own guidance and procedure for determining the ratings.
Factual accuracy challenges can result in substantial changes to the overall outcome of an inspection. This can be particularly important if CQC agrees that the evidence submitted supports removal of a breach of regulations which can be the difference between an overall rating of good and requires improvement.
Providers have however had less success with the ratings review process where only 2% of these reviews result in a positive change to the final report. In many cases providers will feel that a change after the report has already been published will be too little too late if the damage of a bad report has already been done.
When responding to warning notices and other enforcement action, providers have the right to make statutory representations and can appeal to the First Tier Tribunal.
The provider’s concerns
The claimant’s concerns with the report will be familiar to many care providers who have attempted to challenge a draft report; they felt that the report was misleading and that CQC had not adequately responded to the evidence and comments made in respect of its factual accuracy. It is very likely that their concerns were valid.
The provider also sought to prevent the publication of the report to avoid alarming the home’s residents, relatives and staff. The provider also argued that if the report was published substantial damage would be caused to its reputation which would result in financial detriment to the business.
Decision
The provider’s arguments were not sufficient to persuade the court to prevent the report being published. It found that CQC’s inspectors had exercised professional judgement and had properly considered the provider’s factual accuracy comments. The court agreed with CQC’s argument that the provider had the ability to challenge the report in accordance with the statutory scheme outlined above and crucially that it did not “have a right to edit the report or to veto it”. The provider’s challenges to the draft report were not supported by evidence. The fact that the provider did not agree with the inspectors’ findings or felt that they were unfair was not enough to say that the report was unlawful. In this type of case, claimants face a very high bar.
The provider had also obtained an independent report on its service but the court was, unsurprisingly, not prepared to entertain the idea of publishing this report instead of the report by CQC’s inspectors. CQC’s report was reviewed by leading inspectors who agreed that it gave a fair account of the service and its staff.
The court was very clear that the public interest in the publication of the report and the need to inform the public of the commission’s findings during the inspection “clearly outweighed” the potential damage to the provider’s business or its concerns that it could alarm residents and staff.
What can care providers learn from this?
This decision serves to underline the importance of utilising the factual accuracy process if you feel that a draft report contains factual inaccuracies which can be demonstrated with evidence. It is apparent that unless there are exceptional circumstances at play, providers will have little or no chance of preventing the publication of an inspection report and should therefore utilise the statutory scheme to try and amend and improve reports to its fullest.
It also confirms that CQC’s mandate to promote the safety and wellbeing of service users will trump the commercial interests of providers, even where they can show that the publication of a report could have serious impact on the viability of the business.