The recent case of Hexpress Healthcare Ltd v CQC demonstrates the importance of getting CQC’s Factual Accuracy Check (FAC) process right.
The case
Hexpress was inspected by the CQC in May 2022 and a draft inspection report was issued in June 2022. The service was rated Requires Improvement overall and Inadequate in the ‘safe’ domain.
As per usual procedure, Hexpress was given 10 working days to provide submissions under the CQC’s FAC process, which it did. The CQC reviewed the submissions and responded – some amendments were made to the draft report, but the ratings did not change.
Before CQC published the report, Hexpress made an application for judicial review and an interim injunction to prevent publication. The Court gave an interim order to prevent publication until the Court made a decision whether to grant their application for judicial review.
The Court heard both the application for judicial review and the application for an interim injunction. It dismissed the application for an interim injunction but did give permission to apply for judicial review on one ground of challenge – that the CQC acted disproportionately by using only six medical records out of 60,000 as its sample. The other four grounds of challenge were dismissed – one of which was that the final report contained errors of fact or gave undue weight to irrelevant factors.
The judicial review proceedings were heard yesterday 28 March and we await the judgment as to whether the Court finds the CQC acted disproportionately by using a sample size of 6 out of 60,000.
Comment
This case demonstrates just how important the FAC process is. If you do not get the FAC process right, the Courts are generally unwilling to go behind the CQC’s decision making process and question the conclusions of a regulator that is considered an expert in its field.
When dismissing the ground for challenge that there were factual errors in the final report, the Judge said: “The provider’s case does not come close to showing prima facie that the findings are so blatantly wrong that it can be inferred that the CQC’s inspection team has taken leave of its collective senses or that the findings were the product of an abuse of power or bad faith.”
This is a higher bar than the one health and care providers can expect the CQC to apply during the FAC process, which is why it is important to take the FAC process seriously. To persuade the CQC to amend draft reports, providers must show – with supporting evidence – that the findings are factually incorrect. In our experience, the CQC are open and willing to consider this and the FAC process can lead to important and significant changes in both the findings and the ratings in the draft report.
If you would like help with the FAC process or a CQC regulatory matter, don’t hesitate to get in touch.
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