R Babylon Healthcare Ltd v Care Quality Commission
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 08 December 2017 |
| Neutral Citation | [2017] EWHC 3436 (Admin) |
| Docket Number | CO/5497/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 December 2017 |
[2017] EWHC 3436 (Admin)
Mr Justice Holgate
CO/5497/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr J. Anderson (instructed by Ridouts Solicitors) appeared on behalf of the Claimant.
Mr D. Stilitz QC (instructed by the Care Quality Commission) appeared on behalf of the Defendant.
The proceedings
On 4 th July 2017, the Defendant carried out an inspection of the services provided by Babylon Healthcare Limited, acting under s.60 of the Health and Social Care Act 2008. The draft report was completed on 14 th July 2017, and then reviewed internally within the Commission by persons independent of that inspection process. On 7 th August 2017, the report was sent to the Claimant to give it an opportunity to comment on factual accuracy.
The Claimant made a complaint about the conduct of the inspection, which included criticisms of the competence of the inspection team. On 31 st August 2017, the Defendant said that issues relating to the findings and judgments of the inspection team and of the Commission would be dealt with under the factual accuracy process, not the complaints process. On 3 rd November 2017, the Defendant rejected the complaints that had been made, and informed the Claimant of its right to take the matter to the Parliamentary and Health Service Ombudsman. That procedure enables complaints of maladministration to be dealt with.
On 18 th August 2017, the Claimant sent comments on factual accuracy to the Defendant. In her witness statement on behalf of the Defendant, Professor Gallagher, a deputy chief inspector, pointed out that 16 amendments were made as a result of this process, and certain key findings altered (see paras 43–44 of her witness statement).
Section 61 of the 2008 Act obliges the Defendant to publish its final report. On 23 rd November, the Defendant sent a copy of the final report, as proposed to be published, to the Defendant, and also its responses to the Claimant's comments on factual accuracy.
On Friday 24 th November the Claimant issued a claim for judicial review and an application for urgent relief. A number of grounds were raised seeking the quashing of the decision to publish the report and also an injunction restraining the publication pending the outcome of the judicial review proceedings.
Late on that day, the matter came before me as an urgent application on the papers. I made an order prohibiting the Defendant from publishing the inspection report regarding the Claimant until 5 th December or further order. The 5 th December was the return date for an inter partes hearing of the application for an injunction. The application was supported by a witness statement of Mr Ali Parsodoust.
I was satisfied at that stage that having regard in particular to the decision in R (SSP Healthcare Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin) that there was sufficient merit in the grounds as matters then stood, to justify the grant of an injunction for a very limited period. In setting the return day I had regard to the urgency of the matter, the public interest in the publication of the inspection report, the importance of the Defendant having adequate time to be able to respond to the allegations made against it, and the court's resources.
The hearing on 5 th December was not only the return day for a decision on whether the injunction should continue but also gave both parties an opportunity to make submissions as to whether permission to apply for judicial review should be granted. They agreed that that was a matter with which the court could deal if it thought it appropriate to do so.
In preparation for the hearing, the Defendant filed an acknowledgement of service. It submitted firstly that the injunction should be set aside; secondly, permission to apply for judicial review should be refused; and thirdly, the order for anonymity should be set aside.
The hearing took place on 5 th December but it was not possible on that occasion for a judgment to be given because of other business in court. Consequently I reserved judgment until today. I continued the injunction in the meantime until the conclusion of this hearing.
Background
It is helpful to explain the nature of the service provided by Babylon Healthcare Ltd, namely an online GP consultation service. It employs GPs who are on the GMC's GP register to work remotely by undertaking patient consultations. Patients are able to book a 10-minute consultation with a GP, 24 hours a day and 7 days week. Subscribers to the GP consultation service can pay either a monthly fee or for each consultation. Patients may access the service by an application on their mobile phone or via their computer. They can request an appointment which the provider aims to fulfil within 2 hours of the patient's request. The consultation with a GP is undertaken by a video call or over the telephone. Any prescriptions issued following the consultation are faxed or sent by post to the patient's preferred local pharmacy.
Babylon Healthcare Ltd also provides general healthcare advice under an “ask-a-question” service where people can text a medical question and receive an answer from a doctor or a nurse. No diagnosis or prescription is provided for people using this service.
Statutory Framework
The Defendant was established by s.1 of the Health and Social Care Act 2008, and came into existence on 1st April 2009. The main objective of the Commission was defined in s.3 as being to “protect and promote the health, safety and welfare of people who use health and social care services”.
Section 3(2) sets out the general purposes of the Commission. Section 4(1) provides that:
“In performing its functions the Commission must have regard to —…
(e) the need to ensure that action by the Commission in relation to health and social care services is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed…”
Under chapter 2 of part 1 of the 2008 Act, any person who carries on a regulated activity must register with the Commission. By s.12(5) the Commission may vary, remove or impose a condition in relation to a service provider's registration. By s.17 it may cancel any service provider's registration or by s.18 it may suspend it. By s.29 the Commission may issue a warning notice to any registered person who has failed to comply with a relevant requirement. Sections 30 to 32 provide for emergency procedures for the suspension, cancellation or variation of a registration, and gives service providers a right of appeal to the First-tier Tribunal.
Section 60 of the 2008 Act empowers the Commission to carry out inspections of regulated providers. Section 61(2) provides that where an inspection is carried out, the Commission must prepare a report on the matters inspected and then, without delay send a copy to inter alia the person who carries on the regulated activity in question and, thirdly, must publish the report. It follows, and there is no dispute, that where the Commission carries out such inspection, it is obliged to publish its report and to put it into the public domain.
The scheme also includes the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. By regulation 3, the provision of treatment through GP services is a regulated activity for the purposes of the 2008 Act. Regulation 12 requires that care and treatment be provided in a safe way for service users. Subparagraph (2) provides that:
“Without limiting paragraph (1), the things which a registered person must do to comply with that paragraph include—
(a) assessing the risks to the health and safety of service users of receiving the care or treatment;
(b) doing all that is reasonably practicable to mitigate any such risks; ………
(i) where responsibility for the care and treatment of service users is shared with, or transferred to, other persons, working with such other persons, service users and other appropriate persons to ensure that timely care planning takes place to ensure the health, safety and welfare of the service users.”
Regulation 17 provides inter alia that where a registered person is in breach of a regulation, but those using the service are not adjudged to be at immediate risk of harm, the Commission is empowered to issue a “requirement notice” requiring the provider to provide a report explaining the actions it proposes to take to ensure compliance with its obligations.
Finally, although there is no statutory provision for doing so, the Commission may record in an inspection report that a provider has failed to meet the requirements set out in regulation 12 without requiring the provider to make a regulation 17 report or to take any other remedial action. In other words, it is open to the Commission to express a concern but, if it judges it appropriate, it need not impose any...
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