Articles Professional Discipline 29th Nov 2016

R (SSP Health Ltd) v Care Quality Commission

In R (SSP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin) the Care Quality Commission received a bloody nose from Mrs Justice Andrews.

 The applicant (SSPH) in this case was a GP service provider. Following a poor rating from the Care Quality Commission (CQC), it launched a challenge.

Under the Health and Social Care Act 2008 (the Act) there is no right of appeal against an assessment or rating made by the (CQC). There is also no provision in the Act itself or in the corresponding regulations for a review of assessments or ratings awarded by the CQC. The CQC’s Provider Handbook does, however, set out a procedure for challenging the evidence gathered and ratings awarded. This is made up of a two-stage process:

(1) Prior to publication, service providers can challenge the factual accuracy and completeness of the evidence and findings on which the ratings are based, as well as the proposed ratings themselves. The service provider has 10 working days in which to review draft reports and submit its comments to the CQC.

(2) After publication, service providers can seek a review of ratings. The Handbook makes it clear that the only grounds for requesting such a review is that CQC did not correctly follow the process of making ratings decisions and aggregating them (as set out in the Handbook). Service providers cannot request reviews on the basis that they disagree with the judgments made by CQC, “as such disagreements would have been dealt with through the factual accuracy checks…”.

 In this instance, the CQC had issued a draft report which described one of SSPH’s practices as “inadequate”. SSPH challenged the accuracy of the report and in response the CQC’s Lead Inspector made some amendments but the overall rating remained unchanged. SSPH asked the CQC’s Chief Inspector of General Practice to delay the publication of the report so that concerns in relation to identified factual inaccuracies could be discussed. In spite of the request the CQC proceeded to publish its final report. SSPH then requested a review of the rating in relation to the particular Practice. The CQC’s ratings review manager declined this request on the basis that the complaints made by SSPH related to the findings of the report and not a defect in the process.

In her judgment Mrs Justice Andrews said that she was “…not persuaded that it is fair that the Lead Inspector should be the sole arbiter of whether any changes (to a report) should be made.” Instead, she stated that an independent person within the CQC itself would be well placed to resolve the grievance and that, in this case:

“…procedural fairness required the CQC to undertake a review of its response to the proposed factual corrections… 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.

The comments of Mrs Justice Andrews do not of course bind the CQC to make specific changes. However, it has publicly stated on its website that it had already commenced work around introducing such improvements to the process. Until such changes are in place, where a service provider receives a draft inspection report it should respond as quickly as possible and identify any factual inaccuracies. Should the CQC refuse to review its findings this case ought to be of some assistance in seeking to secure an independent review before any report is published.

Alexandra Tampakopoulos 

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