The High Court has ruled that the Care Quality Commission was wrong to ignore the Claimant’s request for a review prior to publishing its ratings report, particularly where the Claimant, a private healthcare provider, had provided a legitimate challenge that the evidence on which the draft report was based should be re-visited prior to publication of the report.
Handing down Judgment on Friday in the case of SSP Health Ltd v Care Quality Commission, Mrs Justice Andrews held that the CQC had adopted an unfair stance in finding that something did not exist because it saw no evidence of it at the time of inspection, particularly when it had not tested whether that evidence existed.
Our client, SSP Health Ltd, is a registered healthcare service provider which operates a large number of GP practices in England. On the 11 November 2014, the CQC carried out a pre-planned inspection of one of SSP Health’s GP practices in Liverpool. Following the inspection, a draft inspection report was produced. In accordance with the CQC handbook process, the draft inspection report was sent to the practice on the 10 February 2015, who then had a 10 working day window in which to submit comments on the factual accuracy of the report. Upon receipt of the comments, the Lead Inspector considered the comments and, whilst some changes were made to the wording of the draft report in respect of two of the points raised, the challenged wording of other aspects of the report remained unchanged and the original rating maintained.
Following the Lead Inspector’s initial review, Dr S Pitalia, senior medical practitioner at the practice, and a Director of SSP Health Ltd, sent an email to the CQC’s Chief Inspector of General Practice raising a number of concerns about the way in which the inspection had taken place and set out full details of why he believed that the evidence on which the ratings were based was incorrect. Crucially, our client asked for the publication of the report to be deferred until further discussions had taken place. The Chief Inspector responded to the effect that the CQC had followed the correct process and that there was no right to a further review at this stage, however the Claimant could seek a review of the rating after publication of the report in line with the handbook. Consequently, whilst the CQC stated that it was willing to engage with our client about the matters raised, it would proceed to publish the report.
Following publication of the report, our client filed a request for the determination of the rating to be reviewed. The CQC ratings review manager held that the submissions for review did not identify any defect in how the CQC had arrived at its findings and consequently stated that a review would not proceed.
As there was no further right of redress, our client had no option but to apply for judicial review. Denise Bond, Partner and Head of Litigation, who specialises in claims brought by GP practices, had conduct of the case. As Denise explains:-
“My client had provided objective evidence which showed that the evidence upon which the report was based was incorrect, misleading or unfair and yet the CQC still refused to change the draft when the errors were pointed out to it. Having heard the evidence, the Court clearly found that my client had 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. The decision taken not to review the matter further prior to publication of the report was clearly as a result of the fact that the current handbook provides no redress other than an initial review. Clearly this was an unreasonable stance to adopt as my client had to go to the expense of applying for judicial review”.
The Court held that whilst it was reasonable for the Chief Inspector to arrive at the decision he did, it was unreasonable for the CQC Lead Inspector to have taken the stance that she did and that an “unfair stance” had been taken by the CQC. Essentially the CQC could not make adverse findings that something did not exist if the GP practice maintained that it did and the CQC did nothing to test that assertion. This would be tantamount to finding that the practice was lying.
The Court went on to state that procedural fairness required the CQC to undertake a review of its response and issued a declaration that the CQC should now in all cases carry out an independent review of a decision made in response to comments in the Factual Accuracy Comments Log, if requested to do so by an inspected body, if the ground of the complaint is that a factual finding maintained in the draft report is demonstrably wrong or misleading.
Furthermore, in this particular case the Judge ordered that the CQC must review the findings made in its report of its inspection of the practice in November 2014 and to reconsider the ratings awarded in light of any adjustments made in consequence of such review.
Clearly this case has significant ramifications for the CQC. If a practice states that evidence does exist and challenges the findings of the initial draft report, the CQC must now undertake an independent review prior to publication of the draft report. It is open to the CQC to either accept the word of the inspected body or ask to see the evidence or even adjusting the report to state that it saw no evidence at the time of the inspection but that it had been subsequently informed that such evidence existed. Crucially, the independent review may well lead to the rating being altered prior to publication.