To complain or not to complain to the CQC?

Where providers feel they have recently encountered poor or unprofessional behaviour from an inspector during a CQC inspection, they might consider whether to make a formal complaint to the CQC.

Whilst some providers may not wish to rock the boat or believe their complaint will not be taken seriously, the fact remains that all regulators (CQC, Ofsted, GMC etc) are required to act professionally and in accordance with their stipulated procedures and the principles of fairness, proportionality and accountability. These requirements not only apply to the regulator but extend to their staff members and those working for the CQC, none of whom are beyond reproach when it comes to a complaint.

What can the CQC investigate?

The CQC can consider complaints concerning the following:

1. Administrative mistakes e.g. providing the wrong information to a provider or taking longer than expected to do something
2. Behaving in an unprofessional manner e.g. acting inappropriately, in a discriminatory manner or using threatening language
3. Not following policies and procedure e.g. not adhering to internal inspection guidance or the enforcement policy.

As evident from the above, there’s a wide scope for complaints to be brought against the CQC by providers. From our own experience working with providers, we’ve raised concerns with the CQC regarding inspectors pre-determining the inspection outcome, acting aggressively and unprofessionally towards staff members, prohibiting providers from providing documentation during an inspection, and prematurely disclosing inspection information to third parties, all of which are concerning.

Whilst a provider can make a complaint to the CQC directly, instructing solicitors to draft the complaint can provide a level of objectivity and distance between the provider and the CQC when making robust representations regarding an inspector’s behaviour. Furthermore, instructing solicitors can assist providers, picking out the best points and advice provided on relevant evidence to append to the complaint.

What can the CQC not investigate?

Whilst complaints will naturally emanate from an inspection, providers should note the CQC cannot consider complaints concerning evidence from inspections, ratings and decisions made under their regulatory powers amongst other stipulated issues. As providers will be aware, complaints regarding inspection evidence and ratings can be addressed through the factual accuracy comments and rating review process.

Whilst the CQC is very explicit on this point, we would not seek to dissuade a provider from referencing their concerns regarding these matters where interlinked with any administrative mistakes, unprofessional behaviour or failure(s) to adhere to policies and procedures. In doing so, the provider is formally placing their concern(s) on record which may prove useful later should the matter proceed to the notice of proposal or notice of decision stage.

Who to contact and when

The CQC states that a complaint should be made to the CQC staff member a provider has been liaising with. In the case of providers, however, this will usually be the inspector. Naturally, this is not relevant or desirable when complaining about the inspector themselves. Therefore, providers should contact the CQC’s National Customer Service Centre and formalise their complaint in writing via the online contact form or in writing to [email protected].

Prior to making a complaint, however, providers should be aware that complaints are to be brought within one year of the issues relating to the complaint being known and where CQC has commenced enforcement action against a provider, the complaint may be paused until the legal process has finished.

Making a complaint to the CQC

For providers who have decided to make a complaint to the CQC, we would recommend the following:

1. Itemise your complaint points and provide a clear explanation of what happened and why you believe the CQC has erred or should have behaved differently (and what behaviour you would have expected from them)
2. Include and append all relevant evidence to support your complaint e.g. documentary evidence or any accounts from relevant personnel etc
3. Set out what you wish to achieve from the complaint e.g. do you wish the service to be reinspected or do you want an apology. It’s worth noting that, although you may request a specific outcome, you may not receive that outcome from the CQC. However, if you don’t ask, you don’t get.
4. Be patient and prepare for the complaint to take time to be reviewed and fully investigated by the CQC. On receipt of the complaint, the CQC will usually ask a provider to confirm the complaint points, and the investigation process can take anywhere from 6 weeks to three months to resolve. Therefore, the more information you provide at the outset, the less requests for further information you should receive from the CQC and the quicker it should take to reach a resolution.

Once the CQC has completed their investigation, they will write to the provider confirming whether each point has been upheld (or not) and a corresponding narrative provided regarding how they reached their decision(s). Where a provider remains dissatisfied regarding the CQC’s response, they can contact the Parliamentary and Health Service Ombudsman (“PHSO”) through their MP and they will consider the complaint.

Conclusion

Deciding to bring a complaint against a regulator can be a daunting prospect however it can also bring to light concerns and/or poor practice not previously known to the regulator in addition to formally placing a provider’s concerns on record pending further enforcement action. Where unprofessional behaviour has been exhibited by a regulator’s staff member or the regulator has failed to follow their own processes, we would also recommend a provider formalise a complaint thus preserving their legal position.