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Despite starting a new year with a new national lockdown, there is some light at the end of the tunnel with the roll out of vaccines to combat the COVID-19 outbreak. We all have hopes of reaching some form of normality in the near future but, until then, CQC’s approach to inspections continues to follow the same format introduced last spring. That is a targeted approach, where CQC believes there may be a risk to service users, with a particular focus on looking at infection prevention and control measures in place.

Unfortunately, during such difficult times, there is more scope for things to go wrong and CQC will conduct inspections if they are notified of any particular concerns with a service. We are aware of situations where CQC has conducted a routine IPC check on a care home, which subsequently led to a standard report format being published because breaches of CQC regulations were identified. We are also aware of some providers not taking the opportunity, at the factual accuracy stage, to challenge inaccuracies in the draft CQC inspection report.

It is important that providers carry out a careful, detailed review of a draft CQC inspection report. If a provider has any concerns about the report, which may include the accuracy, detail or fairness of the content, they should not miss the opportunity to raise those concerns. Providers need to act quickly to address any issues; the challenge should be completed by using the factual accuracy check form, which must be returned to CQC within 10 working days from the date of CQC’s email attaching the draft report. Challenges to the draft inspection report can result in changes to the content of the report, changes to breaches of CQC regulations, as well as changes to ratings in each domain and the overall rating.

The reality is that when a poor inspection report is published, specifically where a care home or other service is rated Inadequate by CQC, the service will be placed into special measures and enforcement action becomes likely. In these circumstances, it is crucial to use the opportunity to raise any concerns with the accuracy of the inspection report.

Care providers should consider investing in legal advice and support at an early stage. If a provider obtains legal advice at the factual accuracy stage, they will have the benefit of assistance from an experienced lawyer who can clearly set out relevant and detailed responses to the draft report, including robust legal arguments.

Where CQC conducts an inspection during the present circumstances, it will be because CQC has been made aware of a concern. In these circumstances, it is likely that the inspector will be specifically looking for issues and areas of non-compliance with health and social care regulations. Inevitably, this will lead to a higher risk of criticism, which may be unfair or disproportionate. In this scenario, providers need to ensure the inspection report is accurate, to avoid any subsequent adverse consequences.

If a provider fails to raise all of the concerns at the factual accuracy stage, this could be a missed opportunity. Once CQC has considered a provider’s comments at the factual accuracy stage, it will respond to those matters, which may result in amendments to the report. The report will then be published. Providers then have the opportunity of applying for a ratings review, but the grounds upon which such a challenge can be made are very limited. It can be challenging to succeed in a ratings review and it is important to seek expert advice. The most important opportunity for providers to raise any issues is at the factual accuracy stage, at which legal arguments about fairness and proportionality may also be raised.

We appreciate that providers continue to face competing priorities at the moment, but if you are concerned about the accuracy or fairness in a draft report, it is vital that you use the factual accuracy stage to address those concerns as early and as quickly as possible before they escalate.

There are some real benefits to investing in lawyers with particular experience of CQC compliance and health and social care regulation at an early stage including, ongoing support and guidance, alieving the pressures of time to prepare the factual accuracy response and should you face enforcement action, we can provide clear advice on approach and tactics.

If you require any advice on a draft inspection report, or if you have any questions regarding CQC’s inspection process, please contact our experienced healthcare and social care solicitors by emailing or telephoning 01202 786135.