The High Court has found that there is an obligation on the Care Quality Commission (CQC) to carry out an independent review of a decision not to make amendments to a report where requested to do so on the basis of factual inaccuracies.  The decision in R (On the Application Of SSP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin) will be of particular interest to organisations which are subject to CQC inspection.  The Court’s comments on fairness will also be relevant to other regulated industries. 

The CQC had inspected one of the Claimant’s GP practices (“the Practice”), and sent a draft report to the Claimant which concluded the Practice should be rated as “inadequate”, according to the CQC’s four-point scale.  The Claimant responded by challenging the factual accuracy of the CQC’s findings in a number of respects, as it was entitled to do under the CQC’s Provider Handbook.  The CQC amended the wording of the report in a number of places, but refused to alter it in respect of the remaining contentious passages.  A member of the Practice raised concerns with the CQC about the inspection and conclusions reached and requested a delay of the publication of the report.  This was declined on the basis that the factual accuracy process had been followed, and that it was open to the Claimant to seek a review of the rating.  A request for a rating review is limited to challenging the process of making ratings decisions and aggregating them under the Provider Handbook (and is considered by a team independent of the inspection process).  The CQC Rating Review Team rejected the Claimant’s request for review on the basis that the request did not relate to these grounds. 

The High Court considered the points that the Claimant had raised about the factual accuracy of the report and found that in four cases, it had been outside the range of reasonable responses for the CQC to fail to make any amendments.  For example, the report concluded that there was no register of older people because the inspectors had not seen one (the Claimant contended it did have one).  The Court noted that where a fact which is easily ascertainable by reference to objective evidence is challenged, the CQC can either accept the challenge, ask to view the evidence (eg ask to see the register of older people), or state that it saw no evidence at the time of inspection but had been informed since that such evidence exists.  In the above example, the CQC could have recorded that although the Practice had informed the CQC such a register existed, during the inspection the practice manager was unaware that such a register was kept.     

The Court found that fairness required an effective process for resolving complaints regarding failures to correct inaccurate or misleading factual findings, where a review is requested, and that requiring recourse to judicial review instead would place a disproportionate burden on claimants.  Although the claim for judicial review in this case failed due to the way the claim was formulated, the Court granted a declaration that there is an obligation on the CQC to carry out an independent review of a decision made in response to the provider’s comments on factual accuracy, on a request to do so by the inspected entity, if the ground of complaint is that a factual finding maintained in the draft report is demonstrably wrong or misleading.

This case is somewhat surprising in placing a procedural requirement on the CQC which goes beyond what is required in statute or in the Provider Handbook.  However, the scope of the CQC’s procedure for requesting a rating review has always presented a difficulty for providers wishing to challenge factual accuracy of the final report.  It is helpful to providers that the Court has made clear that judicial review would be disproportionate in the circumstances.  It is not yet clear how requests for the form of independent review envisaged by the Court should be made: whether this should simply be in writing, or through the rating review or complaints procedures, or whether the CQC will introduce a new process.   However, this case sends a strong message to regulators to ensure that their factual findings are accurate and fair and to provide for an independent review process where necessary.  

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Claire Whittle

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Emma Dowden-Teale


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Melanie Carter

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Posted on 26/08/2016 in Legal Updates

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