Receiving and acting on complaints – Could the CQC be due some self-reflection?

An effective complaints system is a key component to ensuring openness and transparency as well as encouraging internal insight within an organisation. In the health and social care sector, this is applicable both to Providers and those that regulate them. However, over the past few years at Ridouts we have noted a dilution in the effectiveness of the CQC’s complaints process to the extent that, based on our experiences, we would describe it as woefully inadequate.

Whilst we recommend that Providers don’t shy away from raising complaints with the CQC at the earliest opportunity should they have valid concerns, we now find ourselves caveating this with a warning that they shouldn’t expect much, if anything, in terms of an agreeable outcome.

We find many Providers are cautious about raising complaints about the regulator because they are concerned about how this could impact their ongoing relationship. However, the CQC can’t do anything if they don’t know about the issue and we’d recommend it’s always worth having concerns put on the record should you need to refer to these at a later date, particularly as matters linked to the concern may be relied on by the CQC to justify future enforcement action. Nevertheless, we understand Providers being disheartened by the inadequacy of the current complaints process.

What does the CQC Complaints guidance say?

The CQC’s complaints guidance requests that in the first instance, Providers should raise their complaint with the person they have been dealing with at the CQC as they will usually be the best person to resolve the matter. However, if Providers feel unable to do this or have been unsuccessful with this route, they can contact the National Customer Service Centre who will pass the concerns to the CQC complaints team.

Examples of things the complaints team can deal with include:

• The CQC has made an administrative mistake (such as providing the wrong information or taking longer than they said they would to do something);
• The CQC has behaved in an unprofessional way (this includes complaints about members of staff or people working for the CQC);
• The CQC has not followed its policies and procedures.

Things the complaints team cannot deal with include complaints about:

• Evidence from CQC’s inspections, ratings and decisions made under its regulatory powers (the thinking behind this is such matters should be covered through other routes including the factual accuracy comments (FAC) process, rating review system and enforcement representations processes);
• The action it takes if it finds that a care provider or manager is not meeting the standards expected of them, or other decisions around regulation, including enforcement or registration (again, this should be covered through relevant representations and appeals processes);
• Requests to speed up registration applications;
• Employment issues from current or past CQC employees, or from staff from services the CQC regulates;
• Disputes with suppliers about contracts;
• The Government, NHS bodies, local councils and other organisations that the CQC works with;
• The fees care providers pay the CQC to stay registered (unless a mistake has been made and the wrong fee has been charged);
• Legislation and the CQC’s role as set by Parliament.

The first two points listed above under what the CQC cannot consider are the most pertinent to this article.

Importantly, in addition to the above, the complaints policy states “If we are taking enforcement action against a care provider, we may not be able to consider a complaint from them until the legal process has finished.” In our experience, this statement ends up being the blocker to many complaints. While the guidance states the CQC may not be able to consider a complaint in these circumstances, in our experience it appears that a blanket approach is being applied in this respect. In addition, the complaints team have also been known to pause complaints while other non-statutory processes are taking place such as FAC’s and rating reviews.

What are the current issues with the complaints process?

The CQC’s justification behind not considering evidence from inspections, ratings and regulatory decisions as part of the complaints process is that there are separate processes in place for Providers to utilise. For example, the FAC process covers challenges to inspection findings, the rating review system (which, for the record, we believe is also woefully inadequate) gives providers the opportunity to challenge ratings and there are statutory mechanisms in place for responding to certain types of CQC decisions. However, one of the main problems with the current complaints system is that each of these processes are treated as mutually exclusive, whereas in practice there is likely to be an overlap between them. For example, an inspector displaying unprofessional conduct during an inspection could impact on the inspection findings displayed in a draft report creating an overlap between a valid complaint and the FAC process. Depending on the perceived severity of findings, this could also lead to CQC enforcement action whereby the inspectors conduct is a key component of the Providers challenge. However, applying the CQC’s current complaints guidance, the complaint about conduct ‘may’ not be considered until all other processes have been complete.

To help put this issue into context, a couple of examples of Ridouts recent experiences with the CQC complaints process are summarised below.

Example A

Ridouts raised two separate complaints on behalf of a Provider, one in relation to unprofessional behaviour of an inspector during the inspection process and one in relation to the CQC not following its processes and procedures and making administrative mistakes. Following the inspection, the CQC decided to take enforcement action against the Provider. As a result, both complaints were suspended due to the ongoing enforcement action. Concerns were raised with the CQC complaints team about the appropriateness of suspending the complaints process given the concerns about unprofessional conduct on behalf of the inspector. Ridouts highlighted the flaws and risks in a system that allows staff to conduct themselves in an unprofessional manner which goes un-investigated simply because the behaviour was exhibited at an inspection following which enforcement action was taken. The complaints team continued to decline to investigate, simply stating the Provider can seek to resubmit the complaint about the conduct and performance of CQC staff once the relevant enforcement processes are concluded.

Length of time from initial complaint raised to final complaint response: 2 months

Example B

A complaint covering an inspection team’s professional conduct, issues pertaining to judgements made by inspectors and the outcome of an inspection was submitted to the CQC complaints team. The complaint highlighted the overlap between the different CQC processes which included a failure of the inspector to give due regard to evidence submitted through the Providers FACs. The CQC initially suspended the complaint as the rating review process was being pursued by the Provider.

Following conclusion of the rating review process, the complaint was raised again with the complaints team. In response, the complaints team proceeded to cherry-pick areas of the complaint when setting out the ‘scope of complaint’. It was noted that the complaints team would not look at the evidence submitted through the FAC’s even though one of the key areas of complaint was the inspectors failure to consider the FAC submissions (Including the evidence submitted) appropriately. The evidence submitted included contemporary direct evidence in order to demonstrate what took place during the inspection (as opposed to evidence of what was found during the inspection). It was argued that there is a distinct difference between the two and therefore such evidence should be considered by the complaints team and a failure to do so would result in the CQC failing to properly consider a valid aspect of the complaint. This was not accepted by the CQC and the Provider was forced to reluctantly accept the CQC’s limited scope for the complaint in order to progress matters.

The Providers concerns impacted the findings displayed in the final inspection report but the complaints team stated it did not have the power to revisit inspection ratings and judgements. As a result, the resolution sought was a re-inspection of the service by a new inspection team. It was also raised that it was manifestly unfair to the Provider and misleading to the public for a flawed inspection report, which was a result of CQC’s failure to follow process, to remain in the public domain. Following lengthy correspondence spanning a number of months, the CQC finally responded stating they did not uphold the complaint in its entirety.

In addition to the above, concerns were also raised about the complaints teams actions in dissecting complaints and removing allegations that squarely fall within matters the team can deal with. It was put forward that such a practice was evidence of a closed culture and a flawed complaints process. No specific response was provided by the CQC to this concern but they advised that this could be formalised as a separate complaint.

Length of time from initial complaint raised to final complaint response: 5 months

The examples provided above demonstrate the woeful inadequacy of the current CQC complaints system. The CQC is doing a disservice to complainants and service users by refusing to separately investigate an inspector’s behaviour and by taking a prima facie view that their behaviour will not be investigated at all whilst other CQC internal processes are ongoing, regardless of the risks posed - imagine if a Provider refused to determine a care complaint on the basis that there was a legal challenge in process! Providers are also being unfairly impacted through the publication of inspection reports related to inspections where complaints about inspector conduct have not been considered in advance of the publication. In addition, there do not appear to be any timely or appropriate remedies available to address any adverse impact suffered by Providers should the complaints team later accept that an inspector has acted inappropriately (please note we have not had first-hand experience of such a conclusion ever having been reached in recent years). What is clearly required is a rehashing of the whole system.

One of the CQC’s main aims as part of its current strategy is to root out closed cultures within the sector. However, perhaps they should first be looking closer to home to ensure they are emulating the values they expect to be displayed by those it regulates.