The Queen (on the application of SSP Health Ltd) v Care Quality Commission
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 12 August 2016 |
| Neutral Citation | [2016] EWHC 2086 (Admin) |
| Docket Number | Case No: CO/4437/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 August 2016 |
[2016] EWHC 2086 (Admin)
The Honourable Mrs Justice Andrews DBE
Case No: CO/4437/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Simon Butler (instructed by Quality Solicitors AcklamBond) for the Claimant
Ms Catherine Callaghan (instructed by Care Quality Commission) for the Defendant
Hearing date: 28 July 2016
Approved Judgment
The issue in this claim for judicial review is a narrow one, though it is fair to say that its current formulation has evolved over time. Suppose that a regulator, charged by Parliament with the responsibility for the assessment and rating of certain bodies providing services to the public, affords an inspected entity the opportunity to make factual corrections to its draft report prior to publication. The report proposes to make adverse fact findings that could be demonstrated by objective evidence to be incorrect, misleading, or unfair, but the regulator refuses to change the draft when the errors are pointed out to it. In the absence of any appeal process, what redress does the aggrieved party have?
Ms Callaghan, on behalf of the Defendant, submits that its sole remedy is to seek judicial review, and, if appropriate, an interim injunction restraining publication of the report. Mr Butler, on behalf of the Claimant, submits that the common law duty of procedural fairness requires the regulator, if so requested, to reconsider its position by means of a review that is not expressly provided for in the statutory scheme or in its own published Handbook.
The assessment process in the present case provides for a form of review on request by the inspected entity, but only after publication of the report, and only on limited grounds. Both counsel agreed at the hearing that that form of review could not avail the Claimant in the present case, even though that was what the Claimant had originally requested.
THE REGULATORY FRAMEWORK
The Defendant ("the CQC") is the independent regulator of healthcare, adult social care and primary care services in England. It was established under the Health and Social Care Act 2008 ("the 2008 Act") and its main functions are set out in that Act. Persons who carry on a regulated activity (which includes the provision of primary care services) are required to register with the CQC.
The CQC's main objective in performing its functions is to "protect and promote the health, safety and welfare of people who use health and social care services": s.3(1) of the 2008 Act. By s.3(2) it is required to perform its functions for the purpose of encouraging the improvement of health and social care services, and the provision of those services in a way that focuses on the needs and experiences of service users, and makes efficient and effective use of resources.
S.4 of the 2008 Act provides that, in performing its functions, the CQC must have regard to, among other matters, the views expressed by or on behalf of members of the public about health and social care services, the experiences of service users, the need to protect and promote the rights of service users, and the need to ensure that any action taken by the CQC is proportionate to the risks against which it would afford safeguards.
By s.46, the CQC is required to conduct periodic reviews of the carrying on of regulated activities by service providers, including English NHS bodies, to assess their performance, and to publish reports of its assessments (or "ratings"). S.60 empowers it to carry out inspections of the manner in which service providers carry on their functions. In order to carry out such inspections, the CQC has powers to enter and inspect any regulated premises, and may require the provision of documents and information, or explanations to be given of relevant matters. Such inspections may be unannounced, but more often they will be pre-arranged, in which case the regulated body is normally given 2 weeks' prior notice in writing and may be informed of certain things that the inspectors will wish to see.
S.20 of the 2008 Act provides that the Secretary of State must by regulations impose requirements that he considers necessary to secure that the services provided cause no avoidable harm to service users. Those regulations may impose any other requirements that the Secretary of State thinks fit, including those that will secure that the services provided are of an appropriate quality. On 11 November 2014, when the inspection with which this case is concerned took place, the relevant regulations were the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010. They were revoked and replaced by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 with effect from 1 April 2015, but nothing turns on this.
In accordance with s.46 of the 2008 Act, the CQC publishes from time to time a Provider Handbook, which describes its approach to regulating, inspecting and rating NHS GP practices and GP out-of-hours services. It states that the CQC will award ratings on a four-point scale: Outstanding, Good, Requires Improvement, or Inadequate. It sets out the procedure for carrying out inspections and site visits, for producing reports, and reaching ratings judgments.
The Handbook explains that the CQC inspectors will use their professional judgment, supported by objective measures of evidence, to assess services against 5 key questions (relating to 5 aspects or "domains"): Are services safe? Are they effective? Are they caring? Are they responsive to people's needs? Are they well led? It also explains that the inspectors will examine how services are provided to 6 specified population groups, including older people and people with long-term conditions. Judgments and ratings will be made for each population group and every key question. Ratings are then aggregated for every key question and population group, to provide an overall aggregated rating for the practice.
The 2008 Act provides no right of appeal against an assessment or rating. There is also no provision in the Act itself or in the Regulations for the review of assessments or ratings awarded by the CQC. However, Chapter 11 of the Provider Handbook sets out a procedure for challenging the evidence and ratings awarded. This comprises a two-stage process:
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…".
Requests for reviews (at the post-publication stage) are dealt with by CQC staff members who were not involved in the original inspection. The Handbook provides that the review process is the final CQC process for challenging a rating, but that service providers can challenge its decisions elsewhere, for example by complaining to the Parliamentary and Health Services Ombudsman or by applying for judicial review.
FACTUAL BACKGROUND
The Claimant is a registered service provider which operates a large number of GP practices in England, including Seaforth Village Surgery, which is in the Bootle ward area of Liverpool. That area has higher than average deprivation scores for income, employment, healthcare, and deprivation affecting children and older people. Seaforth was one of 20 practices in the Liverpool and Sefton area for which the Claimant was awarded the contract by NHS England in 2013, following a 2-year public procurement process.
On 11 November 2014, the CQC carried out a pre-announced inspection of the Seaforth practice, for which the practice had been given 2 weeks to prepare. The inspection team comprised a Lead Inspector, a GP specialist adviser and a Practice Manager specialist adviser. The inspection took place over a whole day and was comprehensive; the inspection team reviewed the practice in relation to the 5 key questions over all 6 population groups. They spoke to the practice manager, doctors in attendance, a practice nurse, administrative staff and the receptionists on duty, as well as to patients. At the end of the inspection they provided brief headline feedback on the inspection findings.
Following the inspection, a draft inspection report was produced which went through several layers of quality control, including submission to a National Quality Review Panel, as described in the witness statement of Beverley Cole, CQC's Head of General Practice — North. The domains of "safe" and "well led" were rated "Inadequate", whilst the remaining domains were rated "Requires Improvement". The overall rating given to the practice was "Inadequate". Ms Cole explains that this is the consequence of two or more domains being rated "Inadequate," if the report has been approved by the Inspection Manager.
On 10 February 2015, the CQC sent the draft inspection report to the practice and invited it to submit comments on its factual accuracy by 2 March. On 26 February 2015 the practice submitted its comments by...
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