A challenging relationship

While maintaining a productive relationship with CQC is essential, so is challenging any worrying issues on their draft reports, says Nicole Ridgwell.

Over the past year, one topic is a regular feature when substance misuse providers meet at conferences, at training events, and in the waiting rooms of law firms; that their CQC inspection reports are peppered with negative commentary. This commentary, according to providers, does not address their core services but the more tangential and arguably minor aspects of their services. Frustratingly for providers, these critical reports appear to disregard clear evidence of statistically positive outcomes being achieved by the service in question.

The reputational and financial damage caused by such negative reporting is leading some to reflect on whether they are able to sustain services in a sector whose regulator appears to be at war with it.

This fear of being ‘regulated out of the sector’ is also being reported to us at Ridouts. The concern is that CQC has a fundamental misunderstanding of the services they are now regulating. As previously covered within this section, some of the uncertainty of this inspection cycle arises because it has been the first under the new inspections regime. Indeed, by declining to publish ratings during the first year, CQC tacitly acknowledged that this set of inspections was a trial run. However, providers are worried that their experiences indicate more than the initial hurdles of a newly implemented system; there is a disquieting suspicion that CQC inherently distrusts the motives of the substance misuse sector.

The CQC press release of September 2014, setting out the planned changes to the inspection regime, acknowledged that ‘substance misuse treatment is a unique, diverse sector and people using these services often have complex and varied needs’. However, it is this very complexity and the corresponding diversity of treatments used which has been at the core of much of the criticism directed at providers.

As with other sectors brought into regulatory regimes, it may take time for the sector and its regulator to understand each other. I would argue that this only strengthens the need for both sides to engage at every opportunity.

Providers may hesitate to challenge an allegation of regulatory breach even in situations where the thing they are being criticised for is at the heart of the care they provide. A common example of this is where the treatment regime is not that recommended within the NICE guidelines. In my experience, it is not that providers were unaware of the guidelines, nor that they had a ‘devil may care’ attitude to compliance, but that they and their experts had thought long and hard about the nature and experiences of their service user group and concluded that an alternative care pathway was required.

This returns us to the importance of an outcomes-based inspection process and the corresponding need to challenge CQC’s assumptions. If CQC’s chief inspector of hospitals, Professor Sir Mike Richards, meant what he said in his September 2014 press release – that ‘it is vital when looking at substance misuse services that the views, opinions and experiences of people who use them are listened to and that any judgement that we make about those services reflects what we have heard’ – then service user outcomes must be central to all inspections.

‘It is understandable that providers feeling under siege may hesitate to object, for fear that CQC inspectors would return with a grudge.’

It is understandable that providers feeling under siege may hesitate to object, for fear that CQC inspectors would return with a grudge. Yet, not only is there a separate and well-worn complaints process to tackle such blatant prejudice but the advantages of challenging through the factual accuracy process are two-fold: for the service, using legitimate routes to submit a well-drafted and forensically evidenced appeal does lead to substantive changes to reports; for the sector, a cogent explanation of a service’s rationale helps CQC to better understand the sector as a whole.

The impact of challenging draft reports will become even more stark from this month; April 2017 is identified within the CQC strategy 2016–2021 as the month CQC intends to introduce ratings to the substance misuse sector. As any CQC-rated service understands, the blunt headline description of a service as ‘inadequate’ or ‘requires improvement’ will turn away far more private referrers and local commissioners than reading the more nuanced contents of the actual CQC report balancing the good with the bad.

It is therefore vital that providers scrutinise their draft reports and challenge where they fundamentally disagree. Productive interaction with the regulator can and indeed does lead to measurable improvements in outcomes both in terms of industry standards and inspection results. To do otherwise is to allow public misunderstanding of the individual service, whilst perpetuating the mistrust between the sector and CQC.

Nicole Ridgwell is a solicitor at Ridouts LLP, www.ridout-law.com

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