The King (on the application of Hexpress Healthcare Ltd) v The Care Quality Commission
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lady Justice Elisabeth Laing,Lord Justice Arnold |
| Judgment Date | 06 March 2023 |
| Neutral Citation | [2023] EWCA Civ 238 |
| Docket Number | Case No: CA-2022-002320 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 238
Lord Justice Arnold
Lord Justice Dingemans
and
Lady Justice Elisabeth Laing
Case No: CA-2022-002320
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
Mr Justice Mostyn
[2022] EWHC (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Havers KC and Lucy McCann (instructed by Keystone Law) for the Appellant
Daniel Stilitz KC and Stephanie David (instructed by Litigation, Prosecutions and Inquests Team, Care Quality Commission) for the Respondent
Hearing date: 16 February 2023
Approved Judgment
This judgment was handed down remotely at 12 o'clock on 6 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
Introduction
This is an appeal against the order of Mostyn J dated 25 November 2022. Mostyn J had granted permission to the appellant Hexpress Healthcare Limited (“Hexpress”) to apply for judicial review of the decision by the Care Quality Commission (“CQC”) to publish a report dated 20 October 2022 (“the report”) on one ground which was related to the size of a sample of patient records reviewed by the CQC. Mostyn J had refused Hexpress permission to rely on other grounds of challenge. In this appeal Hexpress submit that there were two other grounds of challenge which were arguable so that permission to apply for judicial review should be granted on those grounds as well. There will be a substantive hearing of the application for judicial review at first instance on 28 March 2023 on the ground for which permission to apply was granted by Mostyn J.
The first of the two grounds which are the subject of this appeal relates to the process of independent review of the draft report and involves consideration of a declaration made in R(SSP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin); [2016] Med LR 575 (“ SSP Health”). SSP Health has now been the subject of conflicting decisions at first instance. The second of the two grounds relates to the fact that the CQC set out in the report improvements made by Hexpress after the CQC had inspected and sent Hexpress the draft report, but did not take account of those later improvements when rating Hexpress against defined criteria.
Both Mr Havers KC on behalf of Hexpress and Mr Stilitz KC on behalf of the CQC asked this Court, if the Court concluded that the grounds were arguable, to retain and determine on a substantive basis the application for judicial review on those grounds, rather than just remit them to be determined on 28 March 2023. This was on the basis that we had heard full argument on the two grounds and because, at least in relation to the first ground, there were conflicting decisions at first instance, which meant that if that ground was remitted to be determined at first instance, it was very likely that there would need to be a further appeal.
For the detailed reasons set out below I have concluded that neither of the grounds is arguable and therefore refuse permission to apply for judicial review on these two grounds. As this judgment addresses the conflict between decisions at first instance, permission is granted to cite it in accordance with the terms of the Practice Direction (Citation of Authorities) [2000] 1 WLR 1001.
Mostyn J below also refused to grant Hexpress an interim injunction to restrain publication of the report pending the hearing of the substantive application for judicial review. Hexpress sought permission to appeal against that refusal, but when granting permission to appeal in respect of the two grounds, Snowden LJ refused permission to appeal that part of the decision. The report from the CQC was published on 19 January 2023.
Factual background
Hexpress provides an online medical service. Patients complete an online set of medical questions. The form is reviewed by a doctor who decides whether to prescribe medication. If medication is prescribed, the medication is dispensed either by Hexpress' pharmacy and sent by post, or obtained by the patient from a pharmacy chosen by the patient.
The CQC has a statutory responsibility, pursuant to the Health and Social Care Act 2008 (“the 2008 Act”) for registering and reviewing the providers of health and social care services in England. Those who are registered are referred to as “service providers”. The 2008 Act provides powers to the Secretary of State for Health and Social Care (“the Secretary of State”) to make regulations. The Secretary of State has made the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the Regulations”).
The CQC carried out two inspections of Hexpress. Hexpress was rated “good” overall in May 2019. There were, however, four serious incidents involving patients who had bought medicines from Hexpress which were reported to the CQC. Hexpress decided to stop prescribing one medicine, but the CQC was concerned about whether Hexpress' response was sufficient.
The CQC carried out a third inspection of Hexpress on 17 May 2022 and the inspection was led by Ms Gwindi on behalf of the CQC. Nine patient records were selected to review. Three of those were unreviewable for technical reasons. Six records were then reviewed, and concerns were raised in relation to five of them.
By letter dated 29 June 2022 the CQC sent Hexpress a draft inspection report. This was some 15 pages long. The draft report contained ratings varying from “inadequate”, to “requires improvement” up to “good”, leading to an overall rating of “requires improvement”. In answer to the question “are services safe?” the rating given was “inadequate”. Specific matters relied on to justify that rating were set out in the report. Hexpress were also given notice of the CQC's “Factual accuracy check” (“FAC”) process.
The first ground of appeal which is said on this appeal to be an arguable ground on which to apply for judicial review relates to the FAC process. Under the FAC process, the service provider may, within 10 working days of receipt of the draft report, respond online and tell the CQC where information is factually incorrect and where evidence may be incomplete. The notes about the FAC process state that “the draft report includes evidence collected on the day of inspection. You can also send us information about what action you have taken since the inspection that addresses the concerns we raised with you, or which is included in the draft report. The inspector will consider any further information obtained and determine whether the report should be amended. Unless there are exceptional circumstances, this new information will not form part of CQC's decision around final judgements or ratings (where appropriate).” (italics added). The italicised part of this passage forms the basis of what is said to be the second arguable ground on which to apply for judicial review.
On 5 July 2022 the CQC issued Hexpress with a warning notice under section 29 of the 2008 Act for an alleged breach of regulation 12. Representations were made on behalf of Hexpress and by letter dated 30 August 2022 the CQC stated that the threshold for the assessed level of risk might not have been reached for serving a warning notice and the warning notice was withdrawn.
In the interim, on 14 July 2022 Hexpress sent their FAC comments. These comments ran to 93 pages and 39 appendices. The CQC complained in their Skeleton Argument that this went beyond points of factual accuracy and sought to contest judgments and findings in the draft report on numerous grounds. Ms Gwindi, as the lead inspector of Hexpress, considered the FAC comments submitted by Hexpress and sent amendments made in the light of the comments to another inspection manager at the CQC who was independent of the inspection of Hexpress. That independent inspector reviewed and returned the FAC comments and amended draft with comments to Ms Gwindi on 25 August 2022. Ms Gwindi made further amendments and sent them to the independent inspection manager for a further review on 8 September 2022. The independent inspection manager considered those further amendments and approved them on 16 September 2022. The report was finalised by Ms Gwindi and on 20 October 2022. The CQC sent Hexpress what was said to be the final draft of the report, together with its responses to Hexpress' FAC comments.
It was apparent that, even following the FAC process, there remained disputes between the CQC and Hexpress about the wording of the report, details of which were set out in the witness statement of Dr Sarah Donald, clinical lead for Hexpress. Some disputes were in relation to factual matters, for example whether the CQC had asked Hexpress to provide risk registers. Some disputes were about what was the CQC's real complaint. For example, in relation to the prescription of Zyban it was said that the concern related to the failure to warn the patient about the side effects, relying only on the patient information leaflet provided with the medication, rather than the concern about the contents of the patient information leaflet.
The proceedings below
On 24 October 2022 Hexpress issued a judicial review claim form and sought an interim injunction to restrain publication of the report. There were originally five grounds of challenge. Limited interim orders were made restraining publication pending an oral hearing. On 15 November 2022 the hearing of the application for permission to apply for judicial review and of the interim injunction took place before Mostyn J.
By a written judgment and order dated 25 November 2022 Mostyn J dismissed the application for an interim injunction and granted...
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...of decisions that an application was not arguable. In R (on the application of Hexpress Healthcare Ltd) v The Care Quality Commission [2023] EWCA Civ 238, at [4] the Court of Appeal expressly gave permission for its decision to refuse an application for judicial review because the grounds w......