Waghorn v Care Quality Commission [2012] EWHC 1816 (Admin)

Case No CO/10136/2011[2012] EWHC 1816 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/07/2012
Before
MRS JUSTICE COX DBE
Between
Dr David Anthony WaghornAppellantCare Quality CommissionRespondent
Dr David Waghorn In Person with McKenzie Friend Dr Petrus Jooste for in personRichard Booth (instructed by Radcliffes Lebrasseur, Solicitors) for RespondentHearing Hearing dates: 28 June 2012
Judgment
[1]Dr David Waghorn, a registered medical practitioner, is appealing by way of case stated against the decision of Deputy District Judge Monro at the City of Westminster Magistrates Court, dated 9 June 2011, that on 27 March 2010 at 30 Dover Street, London W1 he carried on an independent hospital without being registered in respect of it under Part II of the Care Standards Act 2000, contrary to section 11 (1) of that Act.[2]At the hearing before me Dr Waghorn (the Appellant) appeared in person, as he did below, assisted by Dr Jooste acting as his McKenzie Friend. The Care Quality Commission (CQC) was represented by Mr Booth.[3]The CQC is now the registration authority in respect of independent hospitals in England for the purposes of the Heath and Social Care Act 2008. At the material time, in March 2010, it was the registration authority for the purposes of section 5 of the Care Standards Act 2000. That Act was extensively amended by the Health and Social Care Act 2008, which replaced the Healthcare Commission with the CQC as from 1 April 2009, but other amendments had not been brought into force by the time we are concerned with in this case, namely 27 March 2010. The Relevant Background[4]On Saturday 27 March 2010 two authorised inspectors employed by the CQC made an unannounced visit to the premises at 30 Dover Street, otherwise known as Berkeley Clinic. They did so pursuant to powers given to them under the Care Standards Act 2000 (“the Act”) to enter and inspect premises which are being used, or which they have reasonable cause to believe are being used to provide services that require the persons carrying on or managing an establishment to register with the CQC.[5]In a room in the basement of these premises they found the Appellant performing a cosmetic surgical procedure, namely liposuction under local anaesthesia, on a female patient. Pursuant to their powers under section 32 of the Act they seized various documents and took photographs of the room and of the equipment being used. No medical records relating to this patient have ever been located by the Commission. Separate issues arise in respect of the acceptable standard of the premises and of the procedure being carried out, but these are irrelevant to this case.[6]On 21 May 2010 the Appellant agreed to be interviewed under caution, in accordance with the provisions of the Police and Criminal Evidence Act 1984. The CQC informed him that it was considered he had committed an offence under section 11(1) of the Act, in that he was carrying on an independent hospital without being registered in respect of it, as required.[7]There is no dispute that during that interview he admitted, so far as the surgical procedure on 27 March was concerned, the following: the patient had seen him at Harley Street about a week earlier and had requested the liposuction procedure, which he was performing as a favour to her; he did not know the patient’s name; the operation had lasted about four hours and had not finished when the inspectors arrived; he had no assistance from anyone that day; he was working there as an individual practitioner and was not employed by anyone; no company was involved in the treatment of the patient that day; he had brought with him and used his own aspiration machine and other equipment; and he had a clinical waste contract with Elmbridge County Council and had brought yellow bags with him for all the waste, which he was taking home for storage and for subsequent disposal.[8]In relation to the premises, he stated as follows: he did not own Berkeley Clinic, which he thought was owned and run by a company unknown to him; he did not rent the basement room; a man called Sanjay Patel, who he said was “a friend of a friend” and who he assumed was the manager of the premises, had given permission to him by telephone for him to use the room; he did not pay to use the room; he had given the patient the address and she made her own way there; he made no enquiries to check the position regarding registration; and he was not employed by and had no contract with Berkeley Clinic for performing medical procedures there.[9]It is accepted that the Appellant treated no other patients at these premises on 27 March. However, he admitted in interview and does not dispute that he had used this treatment room once before, in December 2009, when he had performed another liposuction procedure under local anaesthetic and under the same arrangements.[10]The Appellant’s case, as articulated in his PACE interview, at the hearing before the Deputy District Judge and again before me, is essentially that he was not carrying on an independent hospital. His understanding of the legislation is that, in order to be convicted of an offence under section 11 of the Act, you either have to be carrying on the hospital as the owner or proprietor, or managing it on a day to day basis. He was neither the owner nor the manager.[11]On 24 September 2010, an information was laid by the CQC against the Appellant that on 27 March 2010 at these premises, contrary to section 11(1) of the Act, he had carried on an independent hospital without being registered in respect of it under Part II of the Act, in that he carried on an establishment whose main purpose was to provide a listed service, namely cosmetic surgery. At the material time section 11(1), headed “Requirement to register”, provided as follows:
“Any person who carries on or manages an establishment or agency of any description without being registered under this Part in respect of it (as an establishment or, as the case may be, agency of that description) shall be guilty of an offence.”
The Appellant pleaded not guilty to this offence. The Hearing[12]The Statement of Agreed Facts and Issues, signed and dated 18 May 2011, shows that before the hearing at the Magistrates’ Court on 9 June 2011 the Appellant had formally admitted,(i) that at the material time he was not registered under Part II of the Act in respect of the premises; and(ii) that on 27 March 2010 he had performed a listed service, as defined by section 2(7) of the Act, namely cosmetic surgery (liposuction).[13]In addition, paragraph 6 of the case stated shows that the following matter was not in dispute, having been conceded by the Appellant during the course of the hearing: (iii) that the Appellant performed this cosmetic surgery in a basement room which, by virtue of sections 2(2) and 2(3) of the Act, constituted an independent hospital.[14]At the hearing before me Dr Waghorn stated that he never in fact made this concession. He sought to argue that, although the treatment was carried out in this one room, it is impossible for one room to be a hospital. He referred to the patient arriving at a clinic, with a receptionist, and stated that there were other rooms at the premises, including a changing room and a store room where records, medication and equipment were stored.[15]However, the transcript of the hearing below, prepared by the CQC, contains nothing to indicate that this was a live issue before the Deputy District Judge, or that the Appellant gave evidence about any other rooms being available for use and used at the premises. There is no evidence that he ever indicated to the inspectors who visited on 27 March that there were other rooms in use at the premises that day, in connection with the medical treatment he was providing. Nor did he refer at any point in his lengthy PACE interview to other rooms being available to, or used by him that day.[16]I note that reference is made on the final page of the CQC’s transcript, recording closing submissions by the solicitor for the CQC, to the fact that “Dr W conceded that it was an independent hospital…” The Appellant has produced a lengthier transcript, which is not agreed, but I note that he too has a reference to this submission by the CQC solicitor, “It is now accepted that there was [an] independent hospital” (see page 622 of Volume 1). The Appellant’s note of his own closing remarks (page 623) contains no challenge to this statement. Rather, he agreed with the CQC solicitor that “…this is a case about statutory interpretation.”[17]The preponderance of the evidence, in my view, is that the Appellant did concede this point. In any event, however, in case there was some misunderstanding about this, the CQC called expert evidence from Professor Simon Kay, Consultant in Plastic and Reconstructive Surgery, dealing both with the surgical procedure carried out and the room in which it was performed. The transcript shows the following exchange during his evidence:
“Judge: Despite the state of the room would you say it was an independent hospital? Professor Kay: I think there is confusion over the normal Wikipedia idea of a hospital. The CSA [Care Standards Act] definition is not similar. But in terms of CQC’s definition I think it meets their definition of a hospital. Liposuction is very definitely a surgical procedure. Liposuction is extremely invasive.”
[18]The Deputy District Judge (the judge) referred to this evidence at paragraph 2 (d) of the case stated and to the various photographs exhibited in evidence, before finding as a fact at paragraph 3(d) that “The room used by Dr Waghorn to undertake the cosmetic surgical procedures on the day in question was an independent hospital as defined by the Care Standards Act 2000.”[19]I agree with Mr Booth that it is not now open to the Appellant to seek to go behind that clear finding on the evidence, whether it was conceded or not. The relevant statutory provisions relating to this definition are set out below, when I deal with the questions to be determined by this Court.[20]The judge was satisfied on the evidence that, on 27 March 2010 in this basement room, the Appellant had carried on an independent hospital without being registered to do so and that he was therefore guilty of an offence under section 11(1) of the Act. He was fined £2500 and ordered to pay costs.[21]In so finding she rejected the Appellant’s contentions,(a) that he did not have to register in order to carry out this procedure because registration was the responsibility of the manager who had day to day running of the clinic, and that he was not “carrying on” the hospital because he did not own the building and was not the manager; and(b) that he had “practising privileges” which allowed him to take responsibility for the clinic without having to register, and which entitled him to be exempt from the registration requirement. Rejecting this latter contention she found that there was no evidence before her that he held such privileges. The Issues on Appeal[22]On 27 June 2011 the Appellant made an application to appeal by way of case stated pursuant to section 111 of the Magistrates Court Act 1980. In her stated case the judge specified the following questions for the opinion of the High Court:(a) Is a Medical Practitioner who undertakes a cosmetic surgical procedure at an independent hospital deemed to have “carried on” that independent hospital?(b) Is it necessary for a Medical Practitioner to have an interest in the independent hospital in order to be deemed to have “carried on” that independent hospital?(c) Is the term “carrying on an establishment” deemed to encompass only those persons who are regarded as manager and/or owner of the particular establishment?(d) Whether the evidence as a whole in this case supports the finding that on 27th March 2010 the Appellant was “carrying on” that independent hospital. The first question: (a) is a Medical Practitioner who undertakes a cosmetic surgical procedure at an independent hospital deemed to have “carried on” that independent hospital?[23]For convenience, I set out section 11(1) of the Act again at this point:
“Any person who carries on or manages an establishment or agency of any description without being registered under this Part in respect of it (as an establishment or, as the case may be, agency of that description) shall be guilty of an offence.”
[24]Sections 2(2) and 2(3)(a) of the Act provide that: “(2) A hospital which is not a health service hospital is an independent hospital. (3) ‘Hospital’ (except in the expression health service hospital) means – (a) an establishment - (i) the main purpose of which is to provide medical or psychiatric treatment for illness or mental disorder or palliative care; or (ii) in which (whether or not other services are also provided) any of the listed services are provided; ………..[25]Section 2(7) provides, so far as is relevant: “(7) In this section ‘listed services’ means – (a) medical treatment under anaesthesia or intravenously administered sedation; …… … (e) cosmetic surgery -- other than (i) ear and body piercing; (ii) tattooing; (iii) the subcutaneous injection of a substance or substances into the skin for cosmetic purposes; and (iv) the removal of hair roots or small blemishes on the skin by the application of heat using an electric current;” ………[26]It follows that an establishment, other than a health service hospital, in which liposuction under local anaesthetic was performed, is an independent hospital for the purposes of the 2000 Act. There is no dispute in this case that the Appellant performed cosmetic surgery (liposuction) on 27 March 2010 or that he did so in a basement room at 30 Dover Street. On the facts found in this case, by virtue of sections 2(2), (3)(a)(ii) and (7), this room was an independent hospital within the meaning of the Act. Further the Appellant admitted that he was not registered under the Act to perform this procedure at this hospital.[27]Thus, the question is whether the Appellant “carried on” the hospital within the meaning of section 11(1).[28]Mr Booth submits that he did. Contending that a broad interpretation should be given to the phrase “carries on”, having regard to the purpose of the Act, he submits that the Deputy District Judge’s decision was correct and that the answer to the first question on the facts of this case is in the affirmative.[29]Counsel’s researches have produced little by way of judicial consideration of the expression “carry on”. Mr Booth drew my attention to the case of Turner v Evans [1852] 22 LJQB 412, in which the Defendant was alleged to be in breach of a restrictive covenant preventing him from setting up or carrying on the business of wine merchant within a certain area. Lord Justice Knight Bruce observed, “The term “carry on” is probably a flexible expression, and one that must be interpreted, or aided in its interpretation, by the context – by the object for which, and the circumstances under which, it has been used.”[30]In Kol Curri v Westminster City Council [1999] COD 395 (CO/4203/98) the Divisional Court (Lord Bingham LCJ and Ognall J) heard an appeal by case stated from a man convicted of offences under the Food Safety (General Food Hygiene) Regulations 1995 for selling hot dogs on a mobile trolley. One of the questions was whether he was “carrying on the business” within the relevant statutory provision. Giving the judgment of the Court, Ognall J observed that “The researches of counsel have not yielded any material which assists in the proper construction of these essentially simple words “carrying on the business. One is therefore required for my part to give those words their ordinary and natural meaning…” The Court’s decision on the facts was that the Appellant was no more than a salesman, fulfilling the role of a mere employee, and was not therefore carrying on the business.[31]On behalf of the CQC Mr Booth submits that on the facts of this case the Appellant could not be said to be a mere employee. On the contrary, the evidence shows that he was in overall charge, indeed sole charge, of everything that happened in the establishment (the hospital). On the particular facts of this case, given the aims and purpose of this legislation, this Appellant was carrying on an establishment, within the meaning of section 11.[32]The Appellant filed detailed written submissions and extensive documentation in support of his appeal. Helpfully, in succinct, oral submissions he contends essentially as follows. It is the owner, whether freehold or leasehold, or the day to day manager of the hospital who is required to register under the Act and to take responsibility for the premises. It is impossible for him, as a medical practitioner who does not own, manage or have any control over the premises, to apply for registration. Further, he cannot be said to have carried on the hospital in using this basement room on one occasion when, as a medical practitioner, he held practising privileges which enabled him to perform this procedure and meant that he was exempt from the requirement to register. Further, the CQC have abused their statutory powers in prosecuting him rather than Sanjay Patel as the manager of the premises.[33]Before me the Appellant sought to argue an additional point, not argued below, to the effect that the procedure he carried out was not a listed service within section 3(7) of the Act. Regulation 3 of The Private and Voluntary Health Care (England) Regulations 2001 made provision for exceptions to the definition of independent hospital, for the purposes of section 2 of the Act. By Regulation 3(c)(iii)(j) of The Private and Voluntary Health Care (England) Amendment Regulations 2008, a further exception was created, as follows: “an establishment which is a hospital by virtue of section 2(7)(a) of the Act solely because a medical practitioner provides curettage, cautery or the cryocautery of warts, verrucae or other skin lesions and uses local anaesthesia during that procedure”.[34]The Appellant sought to argue that the liposuction he had performed on 27 March 2010 came within the term “curettage” in that paragraph. At first, he suggested that the CQC had wrongly and deliberately failed to include this amending regulation in the trial bundle prepared for the hearing before the Deputy District Judge, but he fairly accepted that it had in fact been included in this bundle (at page 29) when his attention was drawn to it.[35]On the substantive point, however, the difficulty faced by the Appellant in this respect is that not only was this point not argued below, which he acknowledges, but there was a formal admission made by the Appellant, before the hearing, that he had performed a listed service, namely cosmetic surgery, as defined by section 2(7) of the Act. It is therefore not open to him to raise this point now. In any event, as I pointed out to him in argument, I was unlikely to be persuaded that the invasive liposuction procedure he performed on this patient fell within the term “curettage” in a paragraph dealing with skin lesions.[36]In my judgment, Mr Booth’s submissions on the first question are correct. The two expressions “carries on or manages” in section 11(1) are used in the alternative. The expression “carries on”, as in “carries on or manages an establishment”, seems to me to be capable of encompassing a broad range of personal involvement and control, extending beyond that involved in the phrase “manages an establishment”, so that they cannot be said to be interchangeable terms. The Oxford English Dictionary defines the expression “carry on” as including “to conduct, manage, work at, prosecute” and its scope is plainly broader than the term “manages”.[37]Given that it encompasses a range of involvement or control, the correct interpretation of this expression, in my view, is one which has regard to the context, and the purpose for which it has been used.[38]The primary purpose of the Act is the proper regulation of independent hospitals, in order to ensure the safety and welfare of all those who seek medical advice and treatment there, many of whom will be vulnerable individuals. It seems to me that the restrictive definition of ‘carrying on an establishment’, contended for by the Appellant in this case, runs contrary to the fundamental purpose of the legislation in requiring compulsory registration. I do not consider that it was Parliament’s intention to permit an unregistered surgeon, working entirely on his own, to perform an invasive, surgical procedure on a patient on an ad hoc basis, in a one room hospital owned and managed by another or other persons unknown, and yet escape the reach of section 11(1) of the Act. In my judgment the only sensible conclusion on the facts of this case is that, on 27 March 2010, the Appellant was carrying on the hospital, as that word is defined by the Act.[39]However, even if a narrower interpretation of “carries on” is correct, requiring activity closer, or equivalent to management or control of the hospital, it seems to me that, on the facts of this case, and for the following reasons the Appellant was still correctly held to be carrying on this hospital on 27 March.[40]During the relatively brief period in which the surgical procedure was being performed this room was a hospital, as defined by the Act. It is not in dispute that the Appellant was the sole clinician attached to that hospital on that day, and that he assumed overall responsibility for the surgery and for the patient’s welfare. He performed the surgery without assistance of any kind. He had brought in, and used his own aspiration machine and other medical equipment, which he himself maintained. He intended to transport, store at his home and then dispose of all the clinical waste himself. He alone was responsible for the standard of care provided. He alone was responsible for all the administration, including the completion of relevant documents, any medical notes and appropriate record-keeping.[41]As Mr Booth submits, the entire process was co-ordinated and conducted by the Appellant. At the time of the surgery, within the confines of that small basement room, he was effectively in charge of this “hospital”. He delivered the health care services in this establishment and managed every aspect of the patient’s care. He alone was accountable for the services and the standard of care provided.[42]The importance of having a person who is accountable for the delivery of services in the relevant establishment is clear from the Regulations published by the Secretary of State under section 23(1) of the Act and applicable to independent hospitals. Chapter 3 of the Independent Health Care; National Minimum Standards Regulations (London; The Stationery Office, 2002) commences with the following words:
“Registered Person The role of every person in an independent health care establishment or agency is important in ensuring the delivery of safe quality care, but ultimately the registered provider must be accountable for meeting the standards required for registration, and the registered manager must be accountable for the delivery of the requisite services to those standards. This is a key feature of the new regulatory system. In this respect it is essential that both are fit persons to ‘carry on’ or manage the establishment or agency and that each have clearly defined roles of responsibility.”
I accept Mr Booth’s submission that, on 27 March 2010, the only person who was accountable for the health care services being provided and for the quality of the care delivered to the patient undergoing surgery in that basement room was the Appellant.[43]I do not accept the Appellant’s argument that it was impossible for him, as a medical practitioner, to register under the Act. The application form to which the Appellant drew my attention clearly allows for the application to be made by people who do not own the property from which the medical services will be provided. Any concerns as to the premises to be used, or as to the correct completion of the form, could sensibly be addressed by informing the CQC as to what is proposed and seeking assistance from them.[44]So far as the question of practising privileges is concerned, Mr Booth acknowledges that, whilst there is no express statutory exemption for someone who holds such privileges, where there is a registered provider or manager of services at an establishment, then a medical practitioner may perform a surgical procedure under practising privileges granted by a person who is carrying on a regulated activity, and that practitioner is not required separately to register under the Act. Thus, the answer to the first question in this appeal will not inevitably be yes, if the practitioner can show that he or she held such privileges.[45]However, the standards at chapter 10 of the Independent Health Care; National Minimum Standards Regulations (London; The Stationery Office, 2002) contain a lengthy list of strict requirements that the person who grants such privileges must fulfil in order to ensure that patients are treated by properly qualified and trained health professionals. They include a large number of pre and post-employment checks, references from the two most recent employers and the need for a written agreement with the practitioner setting out the details of the practising privileges.[46]In this case the Deputy District Judge found, at paragraph 6 of the case stated, that “Even though he stated that he had ‘practising privileges’, which he indicated would exempt him from registration, there was no evidence of him holding such ‘privileges’.” That remains the position before me. The Appellant referred only to speaking on the telephone to Sanjay Patel and to his oral permission for the Appellant to use the room. There was no written agreement and the Appellant, on his own admission, had no contract of any kind with Berkeley Clinic. The judge was entitled to conclude that there was no evidence that the Appellant held practising privileges which would afford him a defence to the offence alleged against him under section 11.[47]The Appellant’s proposition that the CQC abused their statutory powers in prosecuting him rather than Mr Patel is, in my view, unarguable. They were entitled to decide, after considering the matter and obtaining approval at a senior level within the CQC, to prosecute the Appellant; and the decision to do so cannot be said to constitute an abuse of their statutory powers to bring proceedings. In any event, even if it were the case that Mr Patel could also be said to be carrying on the hospital, there is nothing in the Act to suggest that there can be only one person carrying on an establishment at any one time.[48]I should record that Mr Booth informed the Court, for completeness, that Mr Patel has since been the subject of a separate, police prosecution. Two weeks before the hearing at the Magistrates’ Court in this case, Mr Patel was convicted at Southwark Crown Court of offences relating to forged prescriptions and the supply of unlicensed medicines, and was sentenced to a term of ten months imprisonment. The second question: Is it necessary for a Medical Practitioner to have an interest in the independent hospital in order to be deemed to have ‘carried on’ that independent hospital?[49]I can answer this question shortly, having regard to those matters dealt with above in addressing the first question. The answer, in my view, is that it is not necessary for a practitioner to have any interest in the hospital in order to be found to be carrying on that hospital. I accept Mr Booth’s submission that there is nothing in the Act to indicate that it is necessary for a person to have either a proprietary interest in the establishment, such as a lease, or any non-proprietary interest, for example a licence.[50]In fact, on the evidence in this case, it appears to be common ground that the Appellant had a licence to use the hospital for the procedure on 27 March, having been permitted to do so by Mr Patel. It would, however, make no difference if the Appellant had no licence on that day but had just gone in and operated on the patient without first obtaining permission to do so. In my view he would still be carrying on the hospital within the meaning of section 11 of the Act. Indeed, it would seem to me to defeat the whole purpose of the legislation if it were otherwise. The third question: Is the term ‘carrying on an establishment’ deemed to encompass only those persons who are regarded as manager and/or owner of the particular establishment?[51]The answer to this question is also in the negative and I refer again to the analysis and my conclusions, as set out in the preceding paragraphs. There will, I anticipate, be many cases where the person carrying on the establishment is in fact the owner and/or the manager of that establishment but, in my judgment, that is not a pre-requisite to liability under section 11. This seems to me to be clear from the use of the conjunction “or” in “carries on or manages an establishment” in section 11, and the broader scope of activity encompassed in the term “carries on” as opposed to “manages”.[52]The Appellant referred to the Explanatory Notes to the Act which, at section 10, paragraph 62, read as follows in relation to section 11(1):
“Subsection (1) provides that any person who caries on or manages an establishment or agency of any description must be registered, and it will be an offence to carry on or manage such an establishment without being registered in respect of it. The principle is that each establishment or agency should have a registered owner or proprietor (person who ‘carries on’ the business).”
[53]I agree with Mr Booth that the words in parentheses are a gloss on the word “proprietor” and I do not consider that they assist the Appellant’s case. As Mr Booth points out, a proprietor, as a matter of law, is not necessarily an owner. For example section 53 of the Food Safety Act 1990 defines the proprietor of a food business as “the person by whom that business is carried on”.[54]For the reasons given above, in particular at paragraph 38, there are important public policy reasons for not restricting the scope of section 11(1) to persons who own or manage the relevant establishment. The point being emphasised in paragraph 62 of the Explanatory Notes is the need for someone to be accountable for the activities taking place in an establishment. The facts of this case, in my view, only serve to demonstrate the importance of the accountability of this Appellant in respect of what occurred, given the absence of any rental or other agreement between the Appellant and the actual owner or manager, and his complete control over the activities that took place in what was, in law, a hospital. The fourth question: Whether the evidence as a whole in this case supports the finding that, on 27 March 2010, the appellant was ‘carrying on’ that independent hospital.[55]For the reasons fully set out above, the evidence in this case clearly supported the finding of the Deputy District Judge.[56]On 27 March, as an individual, registered medical practitioner, the Appellant performed a listed service in a room which was an independent hospital as defined by sections 2 and 3(a)(ii) of the Act. He was not registered to do so and there was no evidence that he had been granted practising privileges to practise medicine there. He had no contract with either Mr Patel or the Berkeley Clinic and he neither paid for the use of the room, nor received payment for the surgery he carried out. He organised the venue for the procedure, provided his own essential machinery and equipment, obtained the necessary consent, administered the anaesthesia, and performed the procedure on his own. He accepts that he alone was responsible for the standard of care provided and he would also have had to deal with any complaint arising from the procedure. He intended to remove and dispose of all the clinical waste himself.[57]On all this evidence the judge was entitled to conclude that, for the time that he was providing treatment in that room on that day, the Appellant was carrying on a hospital and was therefore guilty of an offence under section 11(1) of the Act.[58]For all these reasons this appeal must be dismissed.[59]I add these observations in the light of some of the closing remarks made by the Appellant, responding to the CQC’s submissions. It is clear from those remarks that he views the decision to prosecute him as amounting to a wholly unreasonable exercise of their powers, in circumstances where, as a lone medical practitioner conducting cosmetic surgery on a willing patient, in premises over which he had no control, he considers that he should not be required to register under the Act.[60]In my view, however, it is precisely because he was in overall and sole charge of this entire process, in a room which is, in law, a hospital, that the requirement for him to register under the Act as a person ‘carrying on’ that hospital is important. Registration is required in order that there can be effective, regulatory supervision of medical services provided in independent hospitals, in such circumstances, in accordance with the purpose of this legislation to safeguard the welfare of the patients to whom those services are provided.

Cited in 1 later judgment