Care Quality Commission to be Judicially Reviewed
25 November 2022
The applicant was granted permission to apply for judicial review of the defendant’s decision to publish its report dated 20 October 2022 of its inspection of the applicant’s services on 17th May 2022 on one of five grounds of challenge, but refused an injunction prohibiting the publication of the report until the hearing of the substantive judicial review application: Hexpress Healthcare Ltd, R (On the Application Of) v Care Quality Commission [2022] EWHC 2943 (Admin) Mostyn J
Regulations made under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2019 (SI 2014/2936) specified the fundamental standards to be applied in the care and treatment of service users. Under the Act the CQC published a Provider Handbook which provides that it would give ratings under five service domains for which the ratings were Outstanding, Good, Requires Improvement or Inadequate.
Recognising that the publication of a report with poor ratings on the websites of the CQC and the provider may wreak serious economic and reputational damage, the Handbook published a procedure to challenge the factual findings made and ratings awards.
In R (on the application of SSP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin) Andrews J described the procedure: (i) prior to publication, service providers could challenge the factual accuracy and completeness of the evidence and findings on which the ratings were based as well as the proposed ratings themselves; (ii) after publication service providers could seek a review of ratings, the only ground being that CQC did not follow the process of making ratings decisions and aggregating them.
The present case was about correcting factual errors before publication.
Mrs Justice Andrews made clear in her judgment that the factual accuracy check (FAC) process applied only to primary concrete facts which could be objectively shown by reference to documents or other hard evidence to be “demonstrably ill-founded” or “inaccurate, untrue or misleading.” Therefore the process did not extend to a finding about an abstract fact (e.g. a person’s state of mind) or to a decision which resulted from an evaluation of the primary concrete (or abstract) facts. Such findings and decisions required 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 was also clear that her Ladyship 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.
That was interpreted to mean that a specific sequence of events should take place. In R (Babylon Healthcare Ltd) v Care Quality Commission [2017] EWHC 3436 Holgate J approved that interpretation, although Mostyn J was not sure that was what was intended by Andrews J. It seemed to his Lordship in the present case that the process was what he described as a “work of supererogation”. The CQC had considerably condensed the process and his Lordship did not feel that it was at odds with the judgment of Andrews J. If his Lordship was wrong about the meaning of the judgment of Andrews J, he said he must find a powerful reason for not following it and the avoidance of a time-wasting work of supererogation was in his view a powerful reason for not following it.
Accordingly, the factual procedure adopted by the CQC was fair, was not in conflict with the judgment of Andrews J and therefore lawful, and he respectfully disagreed with his brother judge, Holgate J. If it was in conflict with the judgment of Andrews J, then his Lordship respectfully disagreed with her also.
The applicant was granted permission to apply for judicial review on Ground 2, that the CQC had acted disproportionately, and thereby breached s4(1)(e) of the 2008 Act by using only six medical records as its sample. Ground 1, that the CQC failed to give reasons for departing significantly from its findings in earlier inspection reports was held to be not arguable. Ground 3, that the CQC failed to independently review the FAC response, which was procedurally unfair was held to be not arguable; Ground 4, that the CQC irrationally assessed the safety of the provider’s services as inadequate was refused because that was already covered by Ground 2; Ground 5, that the final report contained errors of fact or else gave undue weight to irrelevant factors was held not to be arguable.
The court could not say on the facts of this case, even taken at their highest, came close to demonstrating the exceptionally strong grounds needed to prevent a public body from publishing a report that Parliament had required it to publish. See: American Cyanamid v Ethicon [1975] AC 396 and R (City College Birmingham) v Ofsted [2009] EWHC 2373 (Admin).