Challenging CQC Reports - National Care Association · August 2017 – CQC State of Care Report (2014 –2017) found almost four fifths of care services were rated Good or Outstanding

Challenging CQC Reports

Alison Wood | Solicitor

19 September 2017

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HEALTHCARE

CQC Inspection

New inspection methodology – looking for “Good”

Fundamental standards introduced by 2014 Regulations

Return of ratings system

Key Lines of Enquiry (KLOES) and ratings characteristics

Consistency still a problem – guidance is minimal and non-specific. One inspector’s opinion on a breach is not the same as another’s

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CQC InspectionAugust 2017 – CQC State of Care Report (2014 – 2017) found almost four fifths of care services were rated Good or Outstanding and nearly one fifth rated Requires Improvement. Only 2% rated Inadequate.

Good or Outstanding homes provide:

Personalised care planning that focuses on the whole person, their history, preferences and wishes.

Varied and flexible activities, tailored to suit people’s wishes, interests and aspirations (e.g. establishing innovative ways to enable people to have a fuller life).

Continually engaging with family, carers and the wider community to improve the service (e.g. looking at alternative training methods and welcoming families and carers as partners in supporting people in the service).

Continuity with hospices and other service providers.

Maintaining community engagement (e.g. bringing the community into the home/enabling residents to participate in local events).

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CQC InspectionServices excel at providing a Caring service (92%) but less successful at being Safe (68%) and Well-led (71%)

Focusing on good leadership and management is closely linked with ratings and improvement of ratings

Issues we regularly come across:

Medication management (MARs incorrectly completed, medication rounds taking too long, medications being missed, PRN protocols not in place).

Staffing levels too low or staff being incorrectly deployed.

Care plans not being up to date and inconsistent with other care records.

Audits being ineffective at identifying concerns seen at the inspection.

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CQC InspectionLocal authorities and clinical commissioning groups can be key influencers

Beyond funding role

Additional support

Prevention is better than cure:

Signposting (e.g. nutritional needs);

Evidencing assessments (e.g. MCA assessments);

Written evidence – “if its not written down, it didn’t happen”;

Handovers (e.g. incidents, hourly observations);

Up to date care plans – ensure that audits cover the content;

Inquest issues – learning (e.g. care plans not up to date, action taken not evidenced, incidents not being responded to appropriately).

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The Report

Factual accuracy response:Challenge accuracy and completeness of evidence.10 working days to review draft report and submit comments to CQC.

R. (SSP Health Ltd) v Care Quality Commission [2016]Case concerned a provider of GP practices and an inspection report from November 2014 relating to one of its practices. Service was rated ‘Inadequate’ for two key questions and ‘Requires Improvement’ for the remaining three. The service was rated ‘Inadequate’ overall. Factual accuracy response was submitted and was largely disregarded by CQC. The ratings were not amended. Concerns were raised about the inspectors forming personal beliefs and opinions and there being a lack of consistency.

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SSP CaseFor example, CQC alleged the practice “did not keep a register of all older people to help plan for the regular review of care and treatment”. The provider confirmed that it did keep such a register but CQC’s response on the factual accuracy log stated: “there was a lengthy discussion with the practice manager about how the practice ensures the needs of older people were met. We talked specifically about registers and practice profiling and he was not aware that this took place or that registers were kept. No evidence was presented for this during the day, including the one referred to here, and ample opportunity was given for this during our visit”.

As the judge stated “none of those points provided any justification for maintaining an assertion that the register of elderly patients did not exist”.

CQC should have sought evidence if it did not believe the submissions made by the provider.

Judgment was very critical of CQC. “The whole point of affording an inspected entity the opportunity to make factual corrections is to produce a final report that is based, so far as is possible, on accurate and balanced fact findings. This was the only opportunity it had to put the record straight”.

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SSP Case - outcomeImpact of published report:

Reputation Contracts not renewed

Declaration made that “there is an obligation on the CQC to carry out an independent review of a decision made in response to comments in the Factual Accuracy Comments Log, on a request to do 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.”

No view was expressed as to whether right of review would extend to other scenarios.

New Factual Accuracy Form and guidance Evidence-based

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Factual AccuracyTypographical errors (category A).Information the provider considers to be factually incorrect – provider should be able to produce further evidence in support of assertion of inaccuracy (category B).Additional evidence regarding position at time of inspection (for “completeness”) –items not currently included in draft report but provider thinks they should be as should impact on rating – copies must be provided (category C).

CQC to consider requesting further evidence. As stated in the SSP case, CQC has a choice. It can either “accept the word of the inspected body and make appropriate adjustments, or it can ask to see some evidence (which may involve it going back [to the service])…or it can adjust the draft report to state, accurately, that it saw no evidence of that matter at the time of its inspection but that it had been informed subsequently that such evidence existed… What it must not do is adopt the unfair stance taken in the present case of maintaining, in the face of an untested assertion to the contrary, a positive fact-finding that something does not exist simply because it saw no evidence of it at the time of the inspection and would have expected the staff to have mentioned it.”

A factual accuracy response will be reviewed by another member of commission staff from the relevant Inspection Directorate who is independent from the original inspection unit

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Factual Accuracy - GuidanceProvide evidence to support inaccuracies and omissions.

Evidence must be signposted in the form – CQC may otherwise disregard it.

Clearly identify the parts of the report that are incorrect and state precisely how the report should be amended.

Challenge ratings at this stage – before publication.

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Rating Review

Rating reviews:

Only grounds for requesting review is that the inspector did not follow the process for making ratings decisions and aggregating them.Provider must inform CQC of their intention to request a review within five working days of report publication.Must request review within 15 working days of publication, stating which rating(s) they want to be reviewed and all relevant grounds.One chance to request review with 500 word limit.

Providers cannot request rating reviews just because they disagree with judgements made by CQC – such disagreement to be dealt with through factual accuracy response and any representations.

Final CQC process for challenging rating.

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Rating Review

What is meant by a failure to follow the process for making rating decisions and aggregating them? Refer to:

Appendix B: Characteristics of each rating level; and

Appendix C: Ratings Principles.

Beware: ratings can go down as well as up!

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Rating Reviews: CQC Summary

Outcome All providers Adult social care Hospitals

Primary medical services

Review ongoing or paused by external factors 34 25 4 5

No review:

Request submitted too late 13 10 0 3

Withdrawn 21 10 0 11

Resolved by consent 8 7 0 1

Closed – no grounds 337 274 10 53

Correct rating process not followed:

Rating(s) increased * 32 21 6 5

Rating(s) decreased * 1 1 0 0

Mixed outcome (ratings increased and decreased) * 2 0 1 1

No change to rating(s) 51 39 4 8

Total 499 387 25 87

Rating review outcomes to 30 June 2017*The data shows changes to any rating at the core service / key question level.

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Case Study

Safe: ‘The lack of safe care was a breach of Regulation 12 HSCA 2008 (regulated Activities) Regulations 2014’.

Caring: ‘We recommend the registered provider ensures people are provided with care in a way that demonstrates that they matter.’

Responsive: ‘We recommend the registered provider reviews the activities available to people to make them more person-centred and individualised’.

Well-led: ‘A lack of good governance was a breach of Regulation 17 of the HSCA 2008 (Regulated Activities) 2014’.

5 breaches of regulations.

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Case Study

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Case Study

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Case Study

Safe: No mention of breach of regulations.

Caring: ‘We found that staff interacted with people in a kind, caring and compassionate manner.’

Responsive: ‘A range of activities were provided to people and those who remained in their rooms received one to one visits from staff.’

Well-led: No mention of breach of regulations.

Only one breach of regulation.

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Case Study

Safe: three alleged breaches of the Regulations (12 – safe care and treatment, 18 - staffing and 19 – fit and proper persons employed).

Effective: two alleged breaches of the Regulations (11 - need for consent and 18 - staffing).

Caring: ‘the service was not always caring.’ ‘Care provided was task orientated’.

Responsive: one alleged breach of the Regulations (Regulation 9 – person-centred care).

Well-led: alleged breach of Regulation 17 (good governance) and references to other alleged breaches as detailed throughout the other key questions.

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Case Study

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Case Study

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Case Study

Safe: no mention of breach of regulations. ‘The service was providing safe care’.

Effective: no breaches of regulations. ‘The service was effective’.

Caring: ‘the staff were caring, kind and compassionate towards people .’

Responsive: no breaches of the Regulations identified.

Well-led: again, no mention of breach of regulations. ‘The service was well-led’.

The draft report alleged six regulatory breaches and placed the home in Special Measures as a result of the ‘Inadequate’ rating. However, following the factual accuracy review, all six alleged breaches were removed from the report and the home’s rating was increased to ‘Good’.

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Alternative challenges

Non-legal challenges:

Request a meeting with CQC: Try and forge a positive relationship, particularly if there are valid concerns in the report.

Write a letter of complaint to CQC:state clearly what outcomes you want to achieve; beware of delays, particularly if enforcement action is ongoing.

Complain to the Parliamentary Health Service Ombudsman:Only available once CQC’s complaints process has been exhausted;Need MP support and agreement before lodging a complaint; Must be made within one year of action;Can make recommendations to CQC to put things right.

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Legal challenge

Judicial review: A claim to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function.

Needs permission from the court.Short time limits (usually three months from the date of the decision/action).Not available if the matter can be resolved by another means.Expensive.Several remedies, including a Quashing Order, which effectively nullifies a decision made by a public body.

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EnforcementSpecial Measures

If Inadequate = Special MeasuresUp to six months to improveIf still Inadequate in any key question = cancellation proceedings

More urgent enforcement action – urgent variations etc. In 2016/17, CQC took 1,910 enforcement actions, which is a 75% increase on the previous year.

CQC prosecutions – safe care and treatment/health and safety incidents (MoU between CQC and the HSE)

Manor House Residential Home – failure to provide safe care and treatment (uncovered radiator with serious burns): ordered to pay £24,600 in fines and costs;Mossley Manor Care Home - failure to provide safe care and treatment, notify CQC of 10 deaths, and notify CQC of three serious incidents: £82,429.72 in fines and costs.

Action by the police – ill treatment/wilful neglect.

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CQC Consultation Proposals

CQC Proposals in “Our Next Phase of Regulation: Consultation 2:”

Tough action on services rated ‘Requires Improvement’ - proposals to consider enforcement action if a service is rated ‘Requires Improvement’ for a third time.

Enforcement action at “group” level – proposals to register and as such, have the ability to take enforcement action against “any related organisations, such as parent companies, that also have accountability for quality”.

Early publication of non-urgent enforcement action – at present CQC cannot publish details of enforcement action until any appeals process has concluded.

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Avoiding Problems

Governance.Quality assurance – ensure you are familiar with the new KLOEs.Management oversight – ensure this is evidenced.Staff knowledge / training – ensure staff are familiar with policies.Utilise external expertise. Risk Assessments – evidence decisions made.Evidencing decisions e.g. MCA assessments.Take appropriate action against staff.Agency staff – induction, ensure suitability, check Schedule 3 requirements.Follow up actions – ensure action plans and external audits are effective.Mock inspections - practice for staff and the manager e.g. signposting and responding to technical questions. The best time to achieve a good inspection report and rating is prior to or during the inspection itself – make the inspector’s job easy!

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Alison Wood | Solicitor

Alison advises health and social care providers on a range of matters. She regularly acts for providers in relation to disputes and enforcement action taken by CQC, including appeals to the Tribunal.She also advises and represents providers in safeguarding investigations, inquests and police investigations, including representing clients in police interviews.

Email: [email protected]

Telephone: 01202 786179

mailto:[email protected]

Documents

Challenging CQC Reports - National Care Association · August 2017 – CQC State of Care Report (2014 –2017) found almost four fifths of care services were rated Good or Outstanding