REGULATORY SUPPORT - the HSC Professional package
 
If your inspection report is not as you would wish, or as you believe it ought to be, what are your options? What are your rights to challenge the report? What are the rights of challenge to the ratings proposed in the report? What is your right of reply to any proposed enforcement action? More crucially, in a relationship of somewhat unequal power, how can you ensure that the CQC assesses any representations fairly, and makes changes where those should properly be made?
 
HSC Professional offers a consultancy service, under contract, to advise on and prepare representations to the Care Quality Commission on draft inspection reports, proposed enforcement action, and performance ratings (proposed or published).
 
The first task is to assess the 'true' regulatory position of the organisation. Following a free preliminary consultation to explore the areas for advice, we will put a contract in place and request the relevant documentation to enable work to start. From the outset our work will be as directed by you.
 
Normally a meeting will be arranged following preliminary assessment of documentation and additional information where needed. A report of any preliminary work will be made at that meeting. Responses and representations on any matter will be developed with you the client, and approved before submission. No communication will be made with the regulator or other third party without prior approval.
 
It is most important not to delay the preparation of responses to inspection reports, of action plans, and of response to other documents or notices such as proposals on enforcement action. For example, where an action plan is required following an inspection, failure to submit it within the timescale given may result in an internal CQC Management Review meeting to determine further action such as a warning notice. If, however, you are already beyond a deadline for a reply to correspondence from CQC we would recommend that a response is still submitted. The next inspection is not the time to challenge the previous inspection report!
 
Response to proposed enforcement or imposition of conditions
A separate or additional submission is indicated where there is proposed enforcement such as a warning notice. The response starts with the reply to the draft inspection report, but will of course address the detail of the notice. Proposals for enforcement may come at the same time as the draft report, or at some later date. There will be a deadline for reply to it.
 
What are the chances of success?
The Care Quality Commission is not renowned for the generosity of its representations procedures, and it is crucial that representations are sound legally as well as clinically if they are to persuade the inspecting officer and her manager that they have 'got it wrong'. Successfully argued representations will result in change including, where appropriate, withdrawal of allegations of breaches and proposed enforcement, and upgrading of ratings.
The High Court case of SSP Health Limited v Care Quality Commission [2015], a judicial review of the response of CQC to representations by a general practice, was a watershed for the Commission. Mrs Justice Andrews observed: "There is little point in giving someone an opportunity to make factual corrections, if there is no procedural mechanism for safeguarding against an unfair refusal to make them". However the judge did not favour 'two bites of the same cherry' unless there was evidence of an unreasonable response, and representations must be legally sound from the outset. One result of the High Court case was a new "factual accuracy" form which, be in no doubt, is a trap for the unwary.
 
Challenging your ratings
A challenge to the ratings is first and foremost in the response to the draft report, but is also permitted following publication of the inspection report. The grounds for challenge at this stage are strictly limited, and strictly controlled. From CQC's published policy:
Request for a rating review
Providers can ask for a review of ratings after publication of their report.
The only grounds for requesting a review is that the inspector did not follow the process for making ratings decisions and aggregating them. Providers cannot request reviews on the basis that they disagree with the judgements made by CQC, as such disagreements would have been dealt with through the factual accuracy checks and any representations about a Warning Notice if one was served.
In the request for review form, providers must say which rating(s) they want to be reviewed and all relevant grounds.

There are differing views as to the criteria for the "process" followed prior to publication of the report and its ratings. If CQC has generated the report along policy lines, and the report has gone through the standard vetting procedure, how could they not have followed their published process? Then there is the alternative view, arising from general principles and approved by the judge last year, that the process must be a fair one, giving proper consideration to any prior representations.
The reality is that a challenge to the published ratings is little short of a test of whether the Commission would be at risk were they to come before a judge! The wording "all relevant grounds" gives away the thinking behind the Commission's approach when you do raise such a challenge. From Freedom of Information requests we know that challenges can be successful and, in any case, no challenge means acceptance of the ratings (and potentially a long road back to a "Good" rating). However, submissions will need legal expertise if they are to have a realistic chance of success.
 
Non-urgent advice and support
We can offer considerable flexibility of advice and support. Other than the compliance assessment package and contracts solely for representations, the arrangements for consultancy can be as a half-day seminar for the manager and other senior staff, with slide presentation and discussion of key issues. For specific advice on current regulatory issues in association with a seminar, time will be needed for preliminary work before the meeting.
We can also advise on preparation and the content of a Provider Information Return; on the preparation of action plans; on updating of Statements of Purpose; or on preparation for the fit person interview for a new registered manager; and so on.
 
Preliminary consultation
If you are interested in engaging any of our services, please call on 07866 605545 to discuss your needs for consultancy support, or you could just send an email. This preliminary consultation is free and without obligation. While we will not be able to offer specific advice at this stage, we will be happy to explore the ways in which our input could be of assistance, whether in carrying out a compliance assessment, or responding to draft inspection reports or proposed enforcement, or in developing action plans, or in meetings to review your arrangements under the fundamental standards.
 
Fees for consultancy work
Please check the Services brochure for fees including the fixed fee scheme