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Viewpoint: Is the CQC’s decision-making process proportionate?

Associate solicitor Nythan Smith, from law firm Ridouts, explains what GPs should do if they do not agree with the decision the CQC makes about their practice.

Nythan Smith, senior associate solicitor, Ridouts

The CQC makes judgments about the quality of the services it inspects by following its own processes. Some question whether the regulator is justified in making such judgments.

A recent case of note against the CQC, which is presently going through the courts, succeeded in part. It found that there was a case to answer in respect of the CQC drawing conclusions based on a relatively low sample size – in this case the sample reviewed constituted one in 10,000 records. Such a review of records in this manner is likely to be of interest to GPs, since the records Practices hold are likely to fall within a comparable range.

Outside of that particular case, we are of the opinion that CQC has all too often been quick to pass judgment, without the factual basis that is likely to be accepted as a fair assessment when balanced against the evidence that allegedly supports the CQC's finding.

One example is the CQC finding that a mask was not being worn properly within a GP service. Does that mean that the provider should be judged as providing poor infection control by virtue of that one incident where a mask was not worn by one member of staff?

In this example the CQC may point to that one instance of poor mask compliance to conclude that the quality of a particular service is less than acceptable.

Because the CQC is focused on risk, in many of the cases that we deal with it has appeared to place more emphasis on negative practice and good practice can often seem of little importance in the overall assessment.

What can GPs do?

It can be difficult to challenge the CQC, but GP providers should choose to engage in a meaningful way with the regulator if you disagree with its findings.

Engaging with the CQC can be a disheartening process especially if you do not get an immediately positive result, but it is important to continue to communicate.

We find that taking a longer-term view on interactions with the CQC can bear fruit, and while GPs would much rather just get on with the day job, relegating interactions with CQC to being of lesser importance would be a missed step.

Challenging the CQC and asking the regulator to provide proof of why it has reached its findings should be approached as an active learning and development exercise. You are unlikely to know if you accept or reject the CQC’s view without consideration of the findings inspectors have reported, so it is important to fully understand the concerns against you. This will also help you to present your position as you see it in response to the CQC.

Irrespective of the manner in which the CQC has reached conclusions, GPs should be able to present their case in response. We find that providers who challenge CQC reports learn more about their practice, in particular understanding where certain risks may lie. The focus for providers should be on getting to the root cause of any alleged concerns, whether you believe the CQC is accurate or not.

The report provided by the CQC is not beyond challenge. The justification behind any of the CQC’s findings can be challenged with evidence in support. However, that might not result in an immediate positive change in the CQC’s opinion.

Making a challenge on the facts and presenting other relevant information which supports why you believe the CQC’s findings are wrong is important. All too often GPs do not challenge the regulator’s findings.

We find that, irrespective of CQC’s responses to your challenges, you should consider also preparing a response to be shared with relevant stakeholders also. This should be used following your attempt to challenge the CQC’s findings. It should be succinct and present your position as you see it in response to what the CQC has said about your practice.

  • Nythan Smith is senior associate solicitor at Ridouts
  • If you require assistance or advice in relation to challenging CQC draft inspection reports or challenging other CQC enforcement action, our specialist solicitors can help. Please contact Ridouts Professional Services Ltd at info@ridout-law.com or call 020 7317 0340.
Ridouts Professional Services Ltd

Ridouts is a law firm that only acts for care providers. We provide legal, operational and strategic advice when providers are faced with matters that could negatively impact their businesses, such as poor CQC inspections and enforcement action. www.ridout-law.com

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