R (Hexpress Healthcare Ltd) v CQC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 25 November 2022 |
| Neutral Citation | [2022] EWHC 2943 (Admin) |
| Docket Number | Case No: CO/3901/2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 2943 (Admin)
Mr Justice Mostyn
Case No: CO/3901/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Havers KC and Lucy McCann (instructed by Ridouts) for the Claimant
Daniel Stilitz KC and Stephanie David (instructed by CQC) for the Defendant
Hearing date: 15 November 2022
Approved Judgment
This is my judgment on the claimant's application for:
i) permission to apply for judicial review of the defendant's decision to publish its report dated 20 October 2022 of its inspection of the claimant's services on 17 May 2022; and
ii) if permission is granted, an injunction prohibiting the publication of the report until the hearing of the substantive judicial review application.
I have had the benefit of extensive written and oral submissions of high quality from Leading Counsel for each party, and I have considered a considerable quantity of written material (the bundles contain 921 pages). I therefore consider that I am in a position to give a fully reasoned judgment.
The claimant (“the provider”) is an online medication prescribing service available to patients aged 18 or over, which is registered with the defendant (“the CQC”).
The legislative scheme
The CQC is the statutory body entrusted by Parliament under the Health and Social Care Act 2008 (“the Act”) with the responsibility for registering and reviewing the providers of health and social care services in England.
Under s. 3(1) of the Act the main objective of the CQC is stated to be to protect the health, safety and welfare of people who use health and social care services.
Under s. 4(1) in performing its functions the CQC must have regard, among other things, 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
…
(g) best practice among persons performing functions comparable to those of the Commission
(including the principles under which regulatory action should be transparent, accountable and consistent).”
Under s. 10 it is an offence to carry on a regulated activity without being registered. Under s. 8 “regulated activity” means an activity of a prescribed kind. Under Paragraph 4(1) of Schedule 1 to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936) (“the Regulations”) the provision of treatment for a disease, disorder or injury by a health care professional is a prescribed regulated activity.
Under s. 29, if it appears to the CQC that a registered person has failed to comply with requirements imposed by it, the CQC may give that person a warning notice. Under s. 33 failure to comply with the warning is an offence.
Under s. 46(1) the CQC must (i) conduct reviews of the carrying on of regulated activities by service providers; (ii) assess their performance following each such review; and (iii) publish the reports of its assessments.
Under s. 46(4) and (5) the CQC must publish a statement which (i) sets out the frequency with which reviews are to be conducted; and (ii) contains a description of the method that it proposes to use in assessing and evaluating the performance of a provider.
Under s. 60(1)(a) of the Act the CQC may for the purposes of its regulatory functions carry out inspections of the carrying on of a regulated activity. Under s.61, where such an inspection is carried out, the CQC must (i) prepare a report on the matters inspected; (ii) without delay send a copy of the report to the person who carries on the regulated activity in question; and (iii) publish the report.
Under Regulation 20A of the Regulations, where a report gives a rating, the service provider must display that rating conspicuously and legibly in each and every place where the regulated activity is delivered, and on its website, where people will be sure to see it.
The Regulations specify the fundamental standards to be applied in the care and treatment of service users. Regulation 9 states that the care and treatment of service users must be appropriate, meet their needs, and reflect their preferences. Regulation 10 says that service users must be treated with dignity and respect. Regulation 12 states that care and treatment must be provided safely. Regulation 17 requires good governance.
Pursuant to s 46(4) & (5) of the Act the CQC has published a Provider Handbook in which it explains that it will give ratings of services in five “domains”:
i) Are services safe?
ii) Are services effective?
iii) Are services caring?
iv) Are services responsive to people's needs?
v) Are services well-led?
For which the possible ratings (with colour coding) are
i) Outstanding
ii) Good
iii) Requires Improvement
iv) Inadequate
Obviously, the publication of a report with poor ratings on the websites of both of the CQC and the provider, has the potential to wreak serious economic and reputational damage. Yet, neither the Act nor the Regulations grant any form of redress by way of appeal, or other form of challenge, to a provider who is aggrieved by a report proposed to be published under s. 46 or s. 61. The statutory silence leaves the only forms of redress to judicial review proceedings or a complaint to the Parliamentary and Health Services Ombudsman.
Correction of factual errors
The CQC recognised the potential unfairness of it publishing a report without affording even the most limited “Maxwellisation” process (i.e. giving a person criticised in the report the opportunity prior to publication to identify factual errors and to seek their correction).
Therefore, its Handbook as originally published provided for a procedure to challenge factual findings made and ratings awarded. In R (On the Application of SSP Health Ltd,) v Care Quality Commission [2016] EWHC 2086 (Admin) at [11] Andrews J described the procedure:
“i) prior to publication, service providers can challenge the factual accuracy and completeness of the evidence and findings on which the ratings are based, as well as the proposed ratings themselves. The service provider has 10 working days in which to review draft reports and submit its comments to the CQC. There is no express provision for the submission of evidence that was not produced at the time of the inspection.
ii) after publication, service providers can seek a review of ratings. The Handbook makes it plain that the only grounds for requesting such a review is that CQC did not follow the process of making ratings decisions and aggregating them (i.e. the process set out in the Handbook). Service providers cannot request reviews on the basis that they disagree with the judgments made by CQC, “ as such disagreements would have been dealt with through the factual accuracy checks…”.”
The case before me is about the first scenario: the correction of factual errors before publication.
In SSP at [52] Andrews J identified the key issue before her:
“If, as in the present case, the CQC did not make the changes which fairness required it to make to the draft report in response to the challenges that were properly raised at the factual accuracy stage, how, if at all, could the Claimant get it to put things right?”
To which her answer at [69] was:
“I will therefore grant a declaration that there is an obligation on the CQC to carry out an independent [internal] review of a decision made in response to comments in the Factual Accuracy Comments Log, on a request to do so by the inspected entity, if the ground of complaint is that a fact-finding maintained in the draft report is demonstrably wrong or misleading. I deliberately express no view as to whether the right of review would extend to other scenarios.”
Andrews J makes clear in her judgment that the factual accuracy check (FAC) process only applies to primary concrete facts which can be objectively shown by reference to documents or other hard evidence to be “demonstrably ill-founded” ([45] or “inaccurate, untrue or misleading” ([48]). Therefore, the process does not extend to a finding about an abstract fact (e.g. a person's state of mind) or to a decision which results from an evaluation of the primary concrete (or abstract) facts 1. Such findings and decisions require a subjective judgment by the fact-finder, about which views may differ without any being wrong. In contrast, a primary concrete fact either happened or it did not.
It is also clear that Andrews J contemplated a single independent review, which would take place if, and only if, the inspector had refused to change allegedly wrong factual findings after having had the alleged errors pointed out. She stated at [51] and [59] – [60]
...“51. Therefore, if and to the extent that complaint is made by the Claimant that the CQC refused a review of the report after publication on a basis which had not been raised at the appropriate time, i.e. in the factual accuracy comments log, the complaint is not well-founded. Procedural fairness in this context does not require the regulator to give a regulated body two bites of the same cherry. On the other hand, if fairness required an amendment and the amendment was not made, there is no reason to shut out the complainant from elaborating on its objections if they were raised at the appropriate stage.
…
59 … an independent person within the CQC itself, applying common sense as well as his or her professional expertise, ought to be able to tell fairly swiftly whether there is or is not a legitimate grievance about the Lead Inspector's failure to correct the report. Such a person should be much better placed to resolve
that
To continue reading
Request your trial