SSP Health Ltd, R (On the Application Of) v Care Quality Commission [2016] EWHC 2086 (Admin)

[2016] EWHC 2086 (Admin)Case No CO/4437/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/08/2016
Before
THE HONOURABLE MRS JUSTICE ANDREWS DBE
Between
THE QUEEN (on the application of SSP HEALTH LIMITED)ClaimantCARE QUALITY COMMISSIONDefendant
Mr Simon Butler (instructed by QualitySolicitors AcklamBond) for ClaimantMs Catherine Callaghan (instructed by Care Quality Commission) for DefendantHearing Hearing date: 28 July 2016
Judgment Approved
[1]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?[2]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.[3]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

[4]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.[5]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.[6]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.[7]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.[8]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.[9]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.[10]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.[11]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…”.[12]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

[13]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.[14]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.[15]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.[16]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 completing the CQC’s “factual accuracy comment log template”. The template was completed by the practice manager and the Claimant’s regional manager. It is the way in which the CQC responded to those comments which now lies at the heart of this claim for judicial review. The Lead Inspector considered the comments. Whilst she made some changes to the wording of the draft in response to two of the points raised, the challenged wording of other aspects of it remained unchanged. The “Inadequate” rating was maintained.[17]On 18 March 2015, Dr Shikha Pitalia, the senior medical practitioner at the Seaforth practice, and a director of the Claimant, sent a letter by email to Professor Steve Field, the CQC’s Chief Inspector of General Practice, which raised a number of concerns about the way in which the inspections at Seaforth and another GP NHS practice run by the Claimant had been conducted, and the conclusions that the inspectors had reached, and asked for the publication of both the reports to be deferred pending a discussion of these matters with the CQC. Among other matters, Dr Pitalia complained that the inspectors had failed to follow due process in that, contrary to what was stated in the Handbook, they had failed to make proportionate judgments, failed to consider the context within which the practices were working, and failed to acknowledge that the practices were working within a federated model, sharing common leadership and systems and processes. Dr Pitalia said the inspectors seemed to apply personal beliefs and opinions rather than professional judgment, because some of the recommendations in the reports appeared to be outside recognised professional guidance and regulations. He also expressed concern that the visiting teams had been inconsistent in their approach and made contradictory statements in the reports without properly following the CQC process as described in the Handbook.[18]Professor Field sent a response from his ipad later that day in which he stated that the CQC had followed due process because “there is a process for commenting on draft reports which has been followed” and because “there is a process for seeking a review of a rating, which it is open to [the Claimant] to use in each case”. In the light of that, Professor Field confirmed that although he was more than willing to engage in dialogue with Dr Pitalia about the matters raised in his letter, the CQC would proceed to publish its inspection reports as planned on the following day, 19 March 2015. This it did.[19]After publication, on 13April 2015 the Claimant made a request for the determination of the rating on Seaforth to be reviewed, apparently by filling in a dedicated form on-line. It made a number of very detailed criticisms, but none of them specifically related to the failure by CQC to follow its published processes; the complaint focused instead on the substantive findings in the report which the Claimant regarded as unfair, inaccurate, or not in keeping with the CQC’s own published guidance or with the requirements of the regulations. Certain points made in the factual accuracy comment log and in Dr Pitalia’s letter to Professor Field were repeated and elaborated on at some length, but new points were also raised. The Claimant did not provide any additional evidence in support.[20]CQC’s ratings review manager, Mr John Forrest, who was independent of the inspection team, responded by letter dated 17 June 2015. As Mr Forrest pointed out:
“… neither your submission or my additional review has identified any area where there was a defect in how CQC arrived at the ratings or aggregated them for Seaforth Village Surgery. As these are the only grounds for requesting a review of ratings, your request for a review for Seaforth will not proceed. This is CQC’s final decision on this matter.”
[21]As a result of the “Inadequate” rating, Seaforth was placed into special measures, which required the practice to improve its service within 6 months to avoid enforcement action by the CQC. The CQC carried out a further inspection of Seaforth on 8 September 2015, which happily resulted in findings that the practice had made significant improvements across all areas. The CQC gave the practice an overall rating of “Good”. That report was published on 29 October 2015.[22]The Claimant claims that the rating had had an adverse impact not only on the livelihood of the staff at the medical practice in Seaforth, but also on the Claimant’s overall reputation. It contends that its contract with NHS England was not extended as a direct consequence of the CQC’s report. Whilst it is true that NHS England sent a letter to the Claimant on 25 June 2015 in which it decided not to renew the contract to run Seaforth surgery, and the CQC’s decision to place Seaforth into special measures was a factor that was taken into account, Ms Cole’s evidence is that NHS England undertook its own assessment using a specified risk matrix, and that in any event the Claimant had submitted its request for an extension after the specified closing date. As there is no claim for damages and as the challenge is to the procedure rather than the rating itself, there is no need for me to resolve any dispute about why the contract was not renewed. Suffice it to say that a bad rating from the regulator is bound to have a detrimental impact on the reputations of those responsible for running the practice. As against that, the CQC would be failing in its overarching responsibilities to the public if it shrank from making decisions that it could foresee would be unpopular with the healthcare provider and could have serious implications for its business.

THE CLAIM FOR JUDICIAL REVIEW

[23]At the time when this claim was brought, it was premised on an assertion that had the CQC engaged with the Claimant throughout the inspection process and completed a report that was objective and impartial, then Seaforth would not have been awarded the rating “Inadequate” (paragraph 16 of the Statement of Facts and Grounds). However, at the hearing, Mr Butler no longer sought to argue the case on that basis. His complaint was that the rating was based upon inaccurate fact-findings, and that procedural fairness required that such inaccuracies be corrected. Whilst he initially contended that it was impossible to say that the same result would obtain if a proper review had been based on accurate information, he accepted that the challenge was not to the rating but to the process by which it was reached. Accordingly, it may well have been open to the CQC to have given the practice an inadequate rating, but at least that rating would have been based upon accurate fact findings.[24]Miss Callaghan complained, with some justification, that her clients appeared to be facing a moving target. If a challenge had been brought to the rating itself, the CQC would have put in evidence about it. However, that was not the way in which this claim was put. She submitted that there was nothing wrong with the decision to refuse a review in this case under the 2-part scheme set out in the Handbook, because the comments of Dr Pitalia to which Mr Forrest responded either sought to flesh out the earlier challenges to the fact-findings, or raised additional issues that should have been raised at the factual accuracy stage, but were not. The Claimant had not identified any errors in the process of awarding or aggregating the ratings.[25]That point, as I have already indicated, was conceded by Mr Butler. His position was that the Claimant’s challenge had always been based on a lack of procedural fairness, and that its case was that fairness required a review of certain of the fact-findings of the inspectors, regardless of whether the review fell within the ambit of the scheme set out in the Handbook.

The Claimant’s complaints about the draft report

[26]In order to understand why the Claimant takes that position, it is necessary to consider what the Claimant said in the “factual accuracy comment log”. Only eight points were raised, in response to which the CQC agreed to make two changes without requiring any further information from the Claimant. The first was a minor correction to the identity of the person who carried out children immunisation sessions. The second was a correction to the proposed statement that there was “no external automated defibrillator”. The Claimant’s response said “there is a defibrillator at the practice, this is situated in the reception area.” The CQC agreed to make the change and to remove an improvement suggestion made in two places in the draft report. Plainly, the existence or otherwise of a defibrillator was something that could be objectively ascertained. The CQC very sensibly did not ask the practice to provide a photograph or other evidence that it existed, even if the inspectors had not seen it or made reference to it in their inspection notes.[27]The approach taken to that factual correction is in marked contrast to the response to other alleged “absences”. First, it was said in the report that “the practice did not keep a register of all older people to help plan for the regular review of care and treatment”. The Claimant’s response challenged that assertion and said “the practice does maintain a < 75 register, with all patients having a named GP and being offered an annual review. We also have a robust QOF recalling system which looks at specific chronic disease areas each month. There is a register in the PM office of all vulnerable patients that are discussed at Virtual Ward/GSF meeting.”[28]The CQC’s response to this was as follows:
“there was a lengthy discussion with the practice manager about how the practice ensures the needs of older people were met. We talked specifically about registers and practice profiling and he was not aware that this took place or that registers were kept. No evidence was presented for this during the day, including the one referred to here, and ample opportunity was given for this during our visit.”
[29]None of those points provided any justification for maintaining an assertion that the register of elderly patients did not exist when the practice said that it did. The existence or otherwise of that register (and the annual reviews) was something which could easily have been ascertained, in the same way as the existence of the defibrillator. If the CQC was sceptical about what was being said (which is understandable) it could have sent someone to have a look at the register, which is presumably kept on a computer, or, if this was for any reason impractical, it could have dealt with the matter in a different way. For example, it could have accurately recorded in the report that although the practice subsequently told the CQC that it kept a register of patients aged over 75, and that their treatment was subject to annual review, the practice manager was unaware that such a register was kept, and the inspectors were not shown it during their inspection.[30]Miss Callaghan pointed out that no evidence was supplied by the Claimant to support its assertion that such a register was kept, and that none has been provided to this day. She submitted that it would be wrong to put the onus on the CQC to ask the Claimant to supply it. However, quite apart from the fact that there is nothing in the procedure to allow for the submission of further evidence, and the fact that it would have to be sent separately from the online form, the Claimant’s failure to produce evidence of this nature is hardly surprising. Even if it had been possible to print off or copy extracts from the register, there would have been obvious issues about data protection and confidentiality. In any event, the Lead Inspector did not refuse to make a change on the basis that no evidence had been produced by the Claimant; she neither said that the Claimant should have provided evidence nor asked to see such evidence. The assertion that such a register was kept was rejected out of hand, on the logically fallacious basis that it did not exist because the inspectors did not see it.[31]Miss Callaghan also contended that even if the CQC had been wrong to make a finding that the register did not exist, it did not affect the validity of the thrust of its criticism about the absence of steps to address the needs of elderly patients. I appreciate that the practice manager’s lack of awareness of how the practice sought to meet the needs of older people, and of the existence of the register, might be a legitimate cause for concern, but it is a different type of concern from the one that would arise if the practice did not keep a register of older patients or review their treatment at all.[32]Likewise, under the heading “learning and improvement from safety incidents” the draft report said that staff “had not been trained in reporting accidents and incidents”. The practice’s response was that “staff have been trained in this, and this is clearly documented in minutes from meetings when training has taken place”. Thus the question whether such training had or had not taken place could be objectively ascertained by reference to documents kept by the practice. The Lead Inspector refused to make any change, commenting that “staff did not report that training and guidance had been provided for them and we were not shown this evidence during the inspection. Staff are also unsure of the incident reporting process, what incidents required reporting and they lacked confidence that actions would be taken.”[33]There is a marked difference between a failure to carry out any training of staff, and legitimate criticism to be made of the quality or effectiveness of such training as was provided. The CQC could easily have made an adjustment to the draft, stating that such training in reporting accidents and incidents as had been provided to the staff was inadequate, or by inserting a word such as “properly” or “adequately” before the word “trained”. That would have accurately reflected their findings and the nub of the criticism being made of the practice. However, once again the response intimated that because the inspectors did not see the evidence (the language used gives no indication as to whether they asked to see it), and because the staff did not volunteer information to them about having been trained, the training did not happen. That was not a fair response to the request for a change to the draft.[34]Under the same heading, the draft stated that “the practice received alert notifications from national safety bodies but there was not a system in place for notifying relevant staff and these alerts were not cascaded throughout the practice”. The Claimant’s response to that was that there was a system in place, which it described as follows:
“when alerts are received the practice manager emails to all clinicians who work at the practice. The practice manager also gives them paper copies in case they don’t access their emails”
. In its submissions to the CQC of 13 April 2015, when elaborating on this topic, the Claimant said that numerous alerts were received from national safety bodies at each practice and by the Claimant centrally. These were then reviewed and if deemed to have an impact on the practice, cascaded to the relevant staff member. The Claimant commented that this was better than cascading all alerts to all staff who may not know how to deal with them.[35]Again, the existence or otherwise of the system could easily have been ascertained. The response by the CQC was “we did not see evidence of this during our visit and staff did not discuss this with the inspection team.” The CQC was therefore prepared to make a positive assertion in its report that the system did not exist purely on the basis that it had seen no evidence of it, and staff did not mention it, even though there is nothing to indicate whether (and if so what) the practice manager was asked or said about it during the inspection, and the CQC was now being told in a document, which that practice manager had signed, that such evidence existed.[36]If the CQC was not prepared to take the word of the Claimant at face value, or to ask to see samples of the emails or hard copies, a fair adjustment to the draft would have been to change the phrase “there was not a system in place” to “we saw no evidence of any system although the practice subsequently informed us that the following system was in place” (and then describe it). Any comments as to the adequacy or otherwise of that system could then be added.[37]The remaining 3 comments on the draft report that the practice asked to be changed did not relate to facts that could be objectively demonstrated to exist. One was about an alleged contradiction between two statements in the report which the CQC refuted (as it rightly concluded that the statements were not contradictory and explained why that was so). Next there was a statement that the practice manager covered 2 practices, so was only at the practice for 2 ½ days each week. The response of the Claimant was that he was there for 5 half days a week (which of course totals 2 ½ days) and was contactable by telephone or email when he was not present. The CQC refused to change the statement, on the basis that the inspectors did not see evidence that the practice manager was at the practice every day, and staff reported that he was only there as stated in the report.[38]Although one might expect the practice manager to be the person best placed to say when he was at the practice, in this case the CQC was entitled to maintain its position. The inspectors interviewed the practice manager during their inspection and they would be able to back up their position with their contemporaneous notes of what they were told by him and by other staff, which the Lead Inspector no doubt checked when she received the form from the practice. It may be that what the staff said contradicted what the practice manager said to the inspectors, and that they preferred what the staff said. In any event, the amount of time that the practice manager spent at the practice was immaterial to the criticism, because it is clear from reading the passage in the report in full that the CQC’s real concern was that when the practice manager was covering his other practice, there was no visible leadership or support at the Seaforth practice. That concern would remain, regardless of how often he was there.[39]Finally, (though this was the first in time of the eight matters raised by the Claimant) there was a challenge to the statement that “staff recruitment policies were in place but not all staff including those with chaperoning responsibilities had undertaken a DBS check.” That statement was literally true, but the natural inference to be drawn from it was that there was a regulatory requirement that such a check be carried out on all staff, and therefore the failure of the practice to do so was a legitimate ground for criticism. In the factual comments log, the practice responded to this by setting out details of its recruitment policy, which requires “a DBS check where appropriate (see DBS policy).” The CQC response was as follows: “the sentence says the practice had a recruitment policy in place, but we found that staff including those with chaperoning responsibilities did not have a completed DBS check”.[40]As was pointed out at some length in the submissions of 13 April 2015, but not specifically mentioned in the factual accuracy comments log, there was no legal requirement for all staff to have undertaken a DBS check. The CQC would (or should) have known this without the need for the Claimant to spell it out. The 13 April submissions stated that in the absence of definitive guidance on the subject, the practice had carried out a risk assessment for each member of staff which led it to the decision that all new recruits need not have a DBS check even if they are involved in chaperoning duties and that these (risk assessments) were seen by the assessor on the day of the visit. The Claimant’s interpretation of the national guidance (to which it referred) was that administrative staff did not need to undertake a DBS check, even if such staff were required to undertake chaperoning responsibilities, so long as they did so only under the supervision of a regulated person (such as a nurse or doctor) who had undertaken a DBS check, which was the case at Seaforth. The Claimant therefore believed that this was a disproportionate conclusion and taken out of context.[41]Miss Callaghan’s riposte was that the practice’s response (even when elaborated upon at the later stage) did not meet the nub of the CQC’s criticism. The CQC acknowledged that the recruitment policy existed, so spelling out what that policy was, was no answer to the point it was making in the draft report. Its complaint was that the policy had not been followed. I do not accept that analysis because, as described in the factual accuracy comments log, the policy did not require a DBS check to be carried out on all staff. The CQC’s complaint therefore appeared on its face to be that the policy was inadequate because that had not happened. In fact, it seems to me from reading documents that were generated after the 13 April submission, that the point that the CQC was really trying to make was that there was nothing in the risk assessments affording an explanation of why those staff who occasionally undertook chaperoning duties did not have a DBS check – i.e. that it was because they were never left alone with a child and were always supervised by someone who had undergone a DBS check.[42]The first point to make is that none of the above candidates for CQC’s real cause for complaint fits with the Lead Inspector’s comments when rejecting the practice’s objections. Those comments, which consisted of repeating the criticised findings, lead to an inference that she, on behalf of the CQC, had formed the view that it was a matter of valid criticism that all staff at the practice, (regardless of whether they had chaperoning responsibilities) had not undertaken a DBS check. Secondly, if the absence of risk assessments was the real concern, and had been clearly expressed in that way, then I have little doubt that the practice would have taken issue with it at the factual accuracy stage because it would have said (as it did in April 2015) that there were risk assessments, and that the inspectors saw them. Thirdly, if the real criticism was that the risk assessments did not explain why the practice felt it unnecessary for administrative staff who might be called upon to carry out chaperoning duties to have DBS checks, then the CQC could and should have made that clearer. In any event it would have been easy for the CQC to have made minor adjustments to the draft which accurately reflected the real basis for criticism without implying that there was a legal requirement to carry out DBS checks on all staff regardless of their responsibilities.[43]In summary, the Claimant made a number of valid points in response to the draft report which did not result in changes to aspects of it that were factually inaccurate or, in one instance, factually accurate but misleading in a way that gave rise to unjustified criticism and obscured the point that might have been the subject of legitimate criticism. Miss Callaghan submitted that even if those four changes had been made, it would have made no difference to the overall assessment. I am not persuaded that would necessarily be the case. After all, it is Ms Cole’s evidence (para 30) that the initial judgment made by the CQC Inspectors following the review of Seaforth was that the two domains which were eventually rated “Inadequate”, one of which was “Safe”, were rated “Requires Improvement”. They were only changed because in the course of the internal peer reviews, the Inspection Manager felt they bordered on “Inadequate” and sent the report back to the Lead Inspector for adjustments to be made to it.[44]In any event, and regardless of whether the result would have been the same, the whole point of affording an inspected entity the opportunity to make factual corrections is to produce a final report that is based, so far as is possible, on accurate and balanced fact findings. This was the only opportunity it had to put the record straight. It was patently outside the range of reasonable responses for the CQC Lead Inspector to take the stance that she did in this case in respect of the four specific corrections that I have identified.[45]I should make it clear that my observations are confined to the situation in which the existence or otherwise of a particular matter such as a system, a record, or an item, is easily ascertainable by reference to documents or other objective evidence (such as the physical existence of the defibrillator) or, as in the example of the DBS checks, where an implication that underlies the fact-findings is demonstrably ill-founded and the findings are therefore misleading. In such a case the regulator has a choice. It can either accept the word of the inspected body and make appropriate adjustments, or it can ask to see some evidence (which may involve it going back to the practice to inspect confidential records) or it can adjust the draft report to state, accurately, that it saw no evidence of that matter at the time of its inspection but that it had been informed subsequently that such evidence existed. If it wanted to it could make reference to the fact that the evidence had still not been produced. It could also cure a factual inaccuracy or a misleading impression by more precisely defining the subject of criticism. What it must not do is adopt the unfair stance taken in the present case of maintaining, in the face of an untested assertion to the contrary, a positive fact-finding that something does not exist simply because it saw no evidence of it at the time of the inspection and would have expected the staff to have mentioned it.[46]I fully understand that the CQC has demands on its human and other resources which may make it impractical for an inspector to go back to a practice to view the evidence, and I also accept that the report reflects, and can only reflect, what was found at the time of the visit, and not later. I am also alive to concerns that a further right of review might pave the way for unscrupulous persons to manufacture “evidence” after the event and then use it to insist that damaging fact-findings which were fully justified are changed. However, that would be difficult to achieve within the 10-day window for responding, and in any event the regulator is not bound to make findings based on evidence that it did not see at the time of its inspection. What it cannot do is make adverse findings that something does not exist if the regulated body tells it that it does, and it does nothing to test that assertion. That would be tantamount to finding that the complainant is lying without taking any steps, let alone reasonable steps, to ascertain whether what it has said is true.[47]What fairness requires, in terms of a response to a correction of this nature, will depend very much on the facts and circumstances of the individual case. There may be situations in which it would be obviously unfair to make an adverse fact-finding without taking further steps such as viewing the evidence. An example of that would have been if the CQC had refused to change the finding that there was no defibrillator. However, in most cases it should be relatively straightforward for a regulator to amend the draft report in a way which makes accurate fact-findings that are legitimately open to it on the basis of what the inspectors saw and heard.[48]It is sometimes the case that the inspected body takes issue with the accuracy of what the inspectors say they were told, or what they saw at the time of their inspection. In that case, the inspectors are entitled to rely on their contemporaneous notes and to refuse to make changes that are inconsistent with them. My observations about making fair corrections are confined to the situation in which a prospective finding of fact is challenged as inaccurate or untrue or misleading, and it can be proved to be so by reference to objective evidence.[49]In summary, the factual accuracy check is not intended to afford the practice a further opportunity to adduce evidence that was not produced at the time of the inspection; nevertheless, it ought to operate in a way that prevents an assessment from being made on inaccurate or untrue fact findings based on the absence of such evidence, which findings can be demonstrated to be wrong.

The appropriate time for making factual challenges

[50]I should next address the question of timing. I appreciate why the submission of 13 April 2015 was written in the terms that it was, in the light of Professor Field’s email of 18 March. However, the two-stage process for challenge outlined in the Handbook affords only one opportunity to make factual corrections and to challenge the completeness of the evidence on which the report is based, the merits of the findings and the ratings themselves. The time for doing so is limited, and that is understandable; the regulator has a duty to publish its findings and to do so without undue delay. It is in the public interest that it does so. It is not open to the regulated body to raise any further ground of factual challenge thereafter with the CQC or to complain if the CQC refuses to entertain it. It may, of course, seek judicial review on traditional grounds but it cannot complain that the process was unfair if it failed to avail itself of that process or make all the comments and criticisms that it should have done at the appropriate time.[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.

What happens if the CQC wrongly refuses to change its findings?

[52]That brings me to the key issue that I identified at the outset of this judgment. 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?[53]Mr Butler submitted that fairness required that the CQC should carry out an independent review at the request of the aggrieved body, even though there was no provision for such a review in the Handbook. He relied upon the observations of Lord Bingham in R(West) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350 at [27] and [30], in the somewhat different context of challenges to the revocation of a convicted person’s licence:
“what does fairness in this context require? Both sides referred to the answer given by Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody [1994] 1AC 531, 560. He there made plain that the requirements of fairness change over time, are flexible and are closely conditioned by the legal and administrative context… In considering what procedural fairness in the present context requires, account must first be taken of the interests at stake.”
[54]Given the potential harm that an adverse report could cause to the reputation of a regulated body, Mr Butler submitted that it was obviously unsatisfactory if there was no possibility of review if the regulator took an unreasonable stance at the stage when the opportunity to make factual corrections arose. Mr Butler also referred to a passage in the judgement of Laws LJ in Abbey Mine Ltd v The Coal Authority & Another [2008] EWCA Civ 353 at [27]:
“in this case the judge was required to decide the reach of the duty of fairness owed by a public body in given circumstances. Though the answer to the question must (per Lord Bridge) depend on context, it is not a question of “mixed law and fact” such as to allow a number of different possible conclusions, all of them lawful and reasonable, any one of which may therefore lie beyond the proper scope of appeal. The reach of the duty is concluded by the court in the exercise of its responsibility to set procedural standards for public decision-making.”
[55]Miss Callaghan submitted that although the court may supplement a statutory procedure to the extent necessary to ensure it operates fairly, any supplementary or implied procedures must not frustrate the statutory scheme or purpose. In this case, the 2008 Act confers a broad discretion on the CQC to determine the appropriate procedure for assessing and evaluating the performance of service providers. It makes no provision for rights of appeal against or for the review of ratings, which suggests that Parliament did not consider that such reviews were necessary. The Act also requires the CQC to give primacy to the interests of service users over service providers. The purpose of performance assessments or ratings is to ensure that the public is able to make informed choices in a timely manner about the quality of healthcare services being provided. Any procedure for enabling a service provider to challenge a rating must therefore be consistent with the need to protect the health and safety of service users, and to provide them with timely information about service quality.[56]Whilst I agree that those are all relevant factors, that does not mean that fairness does not require that there should be another layer of review in appropriate circumstances. The present challenge does not focus on the ratings themselves, but rather on the fact-findings upon which they were based, or in one example the inferences to be drawn from those fact-findings. The ratings procedure adopted by the CQC, on which the public was consulted prior to its adoption, includes a stage at which the regulated body is given a narrow window of opportunity to make comments about proposed fact findings or evaluations, and to suggest corrections before the draft is finalised. As this case demonstrates, circumstances may arise in which there is a legitimate complaint about the failure by the CQC to change the draft in response to those suggestions. In order to be fair, there ought to be an effective process for resolving such complaints swiftly and fairly. It must be robust enough to ensure that legitimate complaints will be upheld. At the same time, a body which is rightly made the subject of censure should not be able to put off publication by raising spurious complaints about failures to correct fact-findings in the draft report.[57]In the present context it is apparent that the responsibility for deciding whether any adjustments should be made to the draft in the light of the comments in the “factual accuracy summary log” fell on the Lead Inspector, and not on any independent person within the CQC such as Mr Forrest. That is understandable and it is not unfair, because the Lead Inspector would be best placed to evaluate the criticism by reference to the contemporaneous notes, and his or her recollection of the inspection. However, I am not persuaded that it is fair that the Lead Inspector should be the sole arbiter of whether any changes should be made.[58]If a complaint is made about the way in which the Lead Inspector has decided to respond to the comments, or about the failure to remove inaccurate fact-findings or to cure misleading impressions created by passages in the draft report, in my judgment it would place a disproportionate burden on the inspected party to require it to start proceedings for judicial review. It is well established that judicial review should be a course of last resort. Moreover, this court is generally an inappropriate place to resolve disputed issues of fact. Legal proceedings are time-consuming and costly for all concerned. Both the regulator and the regulated body will be subject to financial, as well as time, constraints.[59]On the other hand, 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 grievance than this court is. A review process is unlikely to occupy as much valuable time of senior personnel as litigation and it certainly will not cost as much. It need not hold up the publication of the report, though there may be cases in which fairness would require a short delay because otherwise irreversible damage might be done to the reputation of the practice concerned. In this case the CQC did not publish the report until March 2015, even though the inspection took place the previous November. It had good reasons for doing so, but against that background a delay in publication of a further week or fortnight whilst the four specific grievances were considered would not be disproportionate or cause undue damage to the public interest.[60]I therefore conclude that in this case, procedural fairness required the CQC to undertake a review of its response to the proposed factual corrections to the draft report if the Claimant so requested. It is no answer that the right of review of ratings afforded in the Handbook following publication of the report did not cover this type of situation. There is little point in giving someone an opportunity to make factual corrections, if there is no procedural mechanism for safeguarding against an unfair refusal to make them. The review need not hold matters up unduly as it would be of relatively narrow compass, focusing only on the Lead Inspector’s responses to the corrections that were suggested by the Claimant at the relevant time; after all, it did not take this court very long to form a view that the Lead Inspector’s response in the four instances I have adumbrated above was unfair, but that she was entitled to take the stance that she did in respect of the other two suggested corrections.

THE RESOLUTION OF THIS CLAIM

[61]The claim in this case challenges the CQC’s decision on 17 June 2015 to refuse the request by the Claimant made on 13 April 2015 to review the rating.[62]Mr Forrest’s response correctly stated that the Handbook only provided for a review of a rating on grounds of a failure to follow the process for making ratings decisions and aggregating them. He rightly pointed out that the ratings review process was not a second round of factual accuracy submissions. He was right to refuse to entertain any factual accuracy comments that had not previously been raised at the appropriate stage. Yet he did not offer the type of review to which I have found the Claimant was entitled as a matter of procedural fairness, because it was not part of the process in the Handbook.[63]The real problem with this claim is that the request for a review did not clearly focus on the CQC’s failure to make appropriate corrections. It is not helpful to the Claimant’s case that the submissions made on 13 April 2015 raise far wider issues than the complaints about the four specific matters that were not corrected and should have been. The genuine grounds for complaint were buried in a mass of other material which was either raised too late or was not an appropriate subject for review. Mr Butler submitted that at that stage the Claimant was not legally assisted and, particularly in the light of Professor Field’s communication on 18 March, it was hardly surprising that Dr Pitalia went about matters in the way that he did. I do have some sympathy with that, but it seems to me that there is a real difficulty in criticising the CQC for failing to respond to a request that it should review or reconsider its response to the factual accuracy comments, and then carry out a re-evaluation of the ratings in the light of any changes, if such a request was never clearly made.[64]I have carefully considered whether the CQC appreciated, or ought to have appreciated on reading the request for a review that its decision to maintain findings which the Claimant had already challenged was one of the matters being complained about, and one of the matters it was being asked to reconsider. I have concluded that it did. It is clear from the annotations that were made by Mr Forrest against various passages in the request for a review that he appreciated that points were being raised which had already been considered and declined at the factual accuracy stage, and that the Claimant was not happy that those points were still being made in the report. However, Mr Forrest was understandably looking at matters from the perspective of someone who had been asked to carry out a ratings review as per the Handbook. From that perspective, his answer to that request is unimpeachable.[65]Even when reading the Amended Statement of Facts and Grounds it is far from clear that the Lead Inspector’s decision not to change the draft report in the light of the Claimant’s comments is the real target of challenge. The nearest that one gets is a reference in paragraph 24 to “the procedural right to request a review of [the CQC’s] decision-making processes and evidence”. Mr Butler’s refinement to the way in which the case was put emerged clearly enough from his submissions at the hearing, but no application was ever made for permission to make further amendments.[66]For those reasons I am not prepared to grant any declaration that Mr Forrest’s decision of 17 June was not rational or reasonable, or that the CQC was not entitled to refuse a review of that decision. What the CQC was not entitled to refuse was a reasonable request for it to review or reconsider its responses to the Claimant’s factual accuracy comments and then to re-evaluate the ratings in the light of any corrections. That request was never made in clear terms, and therefore it was never expressly refused. Admittedly it is implicit in Mr Forrest’s response that the CQC does not accept that there is or should be any procedural mechanism for revisiting a decision taken at the factual corrections stage of the process, and that was the stance that it adopted at the hearing. It is a stance which I have rejected for the reasons set out above. But that does not mean that his decision of 17 June is open to judicial review.[67]This gives rise to an undesirable state of affairs. The claim for judicial review, as currently formulated in the Amended Statement of Facts and Grounds, must fail. On the other hand, I have accepted that the Claimant has a legitimate grievance and that the way in which the case was put by Mr Butler in argument is compelling. Moreover, the essence of the Claimant’s complaint was apparent from the submissions of 13 April, even though it was not the only complaint and even though the request was for a review of the ratings. I do not consider that the CQC was unfairly prejudiced or unable properly to respond to that much more narrowly focused case. On the contrary Ms Callaghan put forward her arguments robustly and with commendable clarity, and I afforded the CQC an opportunity, which was taken, to put in further written submissions after the hearing. The legal arguments would not have been assisted by any further evidence.[68]Even if I am wrong in my conclusion that procedural fairness requires a means to be provided for a regulated entity to challenge a refusal by the CQC to make changes to its draft report by way of review (by someone like Mr Forrest who is independent of the inspectors), and the only means of redress would be judicial review, I would have granted judicial review of, and quashed the Lead Inspector’s decision to maintain the unfair or misleading fact-findings, had that been the decision challenged, with the same practical result – namely, that the CQC would have been obliged to reconsider those matters. I do not know whether this would have led to a change in the ratings, partly because I do not know which of the reasonable responses that were open to the CQC would have been taken. I agree with Mr Butler that the Claimant is entitled to have its ratings based on accurate findings.[69]In our adversarial system, there is no such thing as a score draw. Given that the court ended up hearing argument from both parties about the real issue, and I have found in favour of the Claimant on those arguments, it would not be just for the Claimant to go away empty-handed. I will therefore grant a declaration that there is an obligation on the CQC to carry out an independent 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.[70]To that very limited extent, the claim for judicial review succeeds. In the light of my findings, I would expect the CQC to reconsider the relevant findings of the published report in this case notwithstanding that it has been superseded by the later more favourable report.

Cited in 4 later judgments