In denial about fairness?


Posted on August 30th, by geoff in Caring Times, CT blog. 1 Comment

By Caring Times editor Geoff Hodgson

Social care providers are indebted to Health Ltd (SSP), a service provider operating GP practices in England, which won a judicial review in the High Court against the Care Quality Commission (CQC) in July. The case concerned the fairness of the CQC’s complaints procedure and this should ring a bell for social care providers.

I was taken aback by the tenor of the regulator’s response to Mrs Justice Andrews’ ruling that it was “unfair for the CQC to maintain their original finding without making appropriate enquiries”. In a press release – http://www.cqc.org.uk/content/judge-finds-rating-review-process-fair-factual-accuracy-improved – the CQC maintains that “Mrs Justice Andrews does not find that CQC’s rating review process is unfair, nor that it was applied unfairly in this case.”

This is somewhat at odds with the judge’s comment that: “ . . . 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.”

This is a nice point: it would seem that the judge did not find the CQC’s appeals process to be unfair, but concluded that the CQC had acted unfairly in refusing to make factual corrections.

The tone of CQC’s press release is one of complacent denial but the regulator does give the undertaking that “All factual accuracy responses will be reviewed by another member of the Commission’s staff from the relevant Inspection Directorate. This staff member will be independent of the original inspection visit”.

All well and good, but it means that the regulator will still be policing itself – it is little more than a tacit assurance that they will refine their appeals system to make it even more unchallengeable.

This case also begs the question of why it was left to a small private healthcare provider to bring this to judicial review. Shouldn’t this be the job of representative bodies? Especially given that the judge said it was a “disproportionate burden” to expect the inspected party to bring a legal claim in the courts? Would it not make more sense for a representative body to go to judicial review to establish a legal principle for the benefit of all its members?

  • The CT Blog is written in a personal capacity – comments and opinions expressed are not necessarily endorsed or supported by Caring Times.




One response to “In denial about fairness?”

  1. Bob Ferguson says:

    Even in this post-truth age, when all facts are negotiable, it’s disappointing to see a statutory regulator demonstrate that there are no depths to which it will not sink in order to justify itself.

    The published judgement of the judicial review* is revealing. Who could possibly have told from the CQC press statement that the finding had gone against it. Not only that, the judge had made some pretty excoriating comments about CQC practices. They also went unremarked.

    The statement’s bald claim that, “The Judge confirms CQC’s ratings review process is fair” is a blatant untruth. Such a declaration, were it true, would be detrimental to any future attempt to challenge undesirable aspects of the process. But the judge said nothing of the sort.

    Although she took the ratings review process as it is drafted in the provider handbook, “fairness” was assessed only against the extent to which CQC had followed that process. The “fairness” of the process itself was not tested. To quote the judge on the nub of the judicial review: “the present challenge does not focus on the ratings themselves, but rather on the fact-findings upon which they were based …” That is a fundamental difference.

    Far from approving CQC’s processes for pre- and post-inspection challenges, as the statement claims, the judge found them wanting. “What the CQC was not entitled to refuse,” she declared, “was a reasonable request for it to review or reconsider its responses to the Claimant’s factual accuracy comments and then to re-evaluate the ratings in the light of any corrections.” Has anyone in CQC actually read the judgement?

    Although the regulator has rushed out new guidance on factual accuracy – which suffers from being produced in haste – the concept itself appears to be foreign to it. Going by the press statement, facts that are awkward are not considered to be actual facts.

    It’s worth asking what CQC considers to be the purpose of its press statements. Are they intended to give providers and the wider public accurate information? Or are they drafted, as this example seems to suggest, to present the regulator in the best possible light – regardless of the facts?

    Who is going to hold CQC to account for this? If we can’t trust it to behave at all times with the utmost integrity, where can we put our trust? Sackcloth and ashes time, Mr Behan.

    * http://www.bailii.org/ew/cases/EWHC/Admin/2016/2086.html


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