How to challenge unacceptable behaviour by CQC inspectors

In April 2012 The Care Quality Commission announced that an inspector had been sacked for gross misconduct. It was separately reported that this individual had been arrested on suspicion of corruption for allegedly extorting money from health and social care providers in exchange for favourable inspection reports. CQC issued the following statement:

"This inspector has failed the organisation, failed the providers who rely on us to act fairly and impartially and - most importantly - failed in their responsibility to protect people who use services through identification of poor care”.

At The Care Standards Consultancy we have never come across corrupt behaviour of this nature and believe it to be extremely rare. Most inspectors are decent and honest. Nevertheless there has always been in every geographical area team the odd CSCI/CQC inspector and even senior manager who behaves irrationally and makes serious errors of judgement. Examples include rude and intimidating demeanour, the use of disrespectful language, refusal to look at essential documentation and deliberate misinterpretation of the provider’s or the manager’s comments. Many providers and managers subjected to such behaviour during an inspection, whilst naturally feeling resentful, may also feel inhibited from objecting at the time, for fear of reprisal by the inspector by means of producing a negative and biased Review of Compliance report. Of course very often that would happen anyway as inspectors of that type normally enjoy writing negative copy.

We believe that with CQC now increasing its inspection activity there will be a corresponding growth in cases of overbearing conduct as inspectors grapple with their heavier caseloads. Recent examples of cases reported to The Care Standards Consultancy include an inspector who accused the registered manager outright of being a “liar” and another where an inspector refused to look at records that proved the provider was actually compliant with an outcome that was subsequently judged non-compliant in the draft report. Over the years we have heard innumerable tales of inspectors’ arrogance and prejudice, particularly against small providers from an ethnic minority background but they normally pass unchallenged.

Providers should realise that it is in their interests to complain formally about an inspector’s conduct as that bad attitude will surely feed into the draft Review of Compliance report. It may be tempting to wait and see what the draft report actually says, at which point CQC invites providers to comment on any factual inaccuracies noted in the text. We believe this delay to be a mistake for four reasons: first, prevention is better than cure - the inspector needs to realise that the provider is not going to be pushed around, which perception generally encourages greater moderation in the report; second, it is always hard to persuade an inspector to alter text after it is written in the draft report; third, CQC will try to exclude discussion of such matters at this stage, claiming (wrongly but it is an unhelpful distraction) that only matters of factual inaccuracy can be raised (see below); fourth, CQC senior managers, who have a vested interest in supporting their officers, tend to take the view that complaints made after production of the draft report are probably more to do with the provider’s disappointment with its contents rather than a genuine objection to the inspector’s conduct on the day.

[CQC consistently argue that inspector’s judgements and matters of conduct cannot be dealt with at the draft report stage. This, although convenient for CQC who obviously want to avoid time-consuming debates that make them look incompetent, is clearly wrong in law. If the inspector’s conduct has led to erroneous judgements, then the report is intrinsically flawed. The inspector’s judgements clearly derive from the facts of the case, therefore factual accuracy and judgement are inextricably linked.]

Happily, CQC’s new Enforcement Policy (published in April 2012) supports this view. Paragraph 39 states:

“The factual accuracy check on the draft report provides an opportunity for providers to challenge the content of the report. The factual accuracy process may legitimately challenge facts that directly impact on the judgement arrived at in the report”. 

In the light of that, providers should be bold in demanding that CQC take into account their concerns at this stage, including any concerns regarding the inspector’s conduct. However the technical argument involved around this issue can be avoided by making an early complaint to CQC under Stage 1 of their complaints procedure before the draft report arrives. For providers to feel confident that regulation is transparent and fair, inspectors must be properly accountable for their behaviour whether it affects the contents of draft reports or not. Staff on the receiving end of inspections should never be bullied or insulted and should be free to express their views as well as providing evidence of the way the service operates.

CQC inspectors are supposed to provide an impartial, balanced and proportionate view of a service at the time of the review (which will probably not be the same day as the site visit – a point worth remembering). As CQC’s internal guidance (which emphasises the importance of transparency and proportionality) points out, all of the information that they seek to rely on to support their judgements should be robust, reliable and triangulated i.e. corroborated by more than a single source. There should be no surprises for the provider in the draft Review of Compliance, which means that inspectors should always give full and detailed feedback including positive as well as negative findings.

Despite their fearsome reputation inspectors are just like other human beings and tend to behave more circumspectly when under observation. For this reason we advise providers to deploy a member of staff to monitor the inspector discreetly during the site visit, making notes where possible of what he or she does and says, as well as listing the documents the inspector is offered and whether they are actually examined. If an inspector ignores or refuses to check documents that a provider considers relevant then copies should be made and sent to that inspector and the area manager within 24 hours with a written explanation that the inspector failed to examine important relevant material. This tactic ensures the information comes into play bearing in mind that the site visit alone is not the whole compliance review.

If an inspector has been rude or overbearing to staff or even service users (it happens!), it may be worth taking a statement from the ‘victim’ as soon as possible as that would provide helpful evidence for any complaint to be made. Finally, in extremis the person in charge would be justified in asking a particularly unpleasant inspector to leave if his or her behaviour was upsetting staff or service users. However, in such a case, full records would need to be kept to defend against a potential accusation of obstruction.

To sum up, if a provider feels that an inspector has overstepped the mark and behaved unreasonably he or she should not hesitate to complain to CQC. It is only fair that their officers should be expected to adhere to civilised standards just as service providers are required to comply with the legislation and other rules that govern the provision of care services. If you feel you need help The Care Standards Consultancy is always there for sound advice in such cases.

Tom Cooper LLB

June 2012