The CQC has statutory powers to review and report on providers of health and social care in England. The CQC’s ratings (ranging from “inadequate” to “outstanding”) are published on its website. The CQC ratings can influence whether patients choose to use that provider and for private healthcare providers in particular, their CQC rating can be very important from a reputational point of view. What happens if a provider is awarded an unfair or negative rating? How can these be challenged?
The Court of Appeal’s judgment in R (on the application of Hexpress Healthcare Limited) v The Care Quality Commission  EWCA Civ 238, which was published on 6 March 2023, provides an important example for CQC-registered healthcare providers about how best to prevent or challenge an unfairly negative CQC rating.
Hexpress is an online prescribing service. It was inspected by the CQC in May 2022. The CQC sent Hexpress its draft inspection report in June 2022 and informed Hexpress of the ‘factual accuracy check’ (“FAC”) process. Hexpress responded with very detailed representations to the CQC, which were intended to correct aspects it considered were factually inaccurate and unfair. The lead inspector considered the FACs and made some amendments to the draft report as a result. An independent reviewer within the CQC then considered it, and after further amendments, the report was finalised by the lead inspector and shared with Hexpress.
Hexpress still considered that the CQC process had been flawed and that the consequent ratings were not accurate. Hexpress started a judicial review (“JR”) against CQC in October 2022, and the JR sought to quash the inspection report. Mostyn J held a hearing in November 2022. Hexpress was given permission to proceed with the JR on one of its five proposed grounds: that the CQC had acted disproportionately by using only six medical records as its sample (out of around 60,000 available) as part of its inspection.
In December 2022, Hexpress appealed the decision of Mostyn J, essentially seeking permission to proceed with JR on two more grounds, namely (i) procedural unfairness in that the CQC had failed to independently review the FAC response, and (ii) the final report containing errors of fact or giving undue weight to irrelevant factors, including that the CQC failed to consider Hexpress’s evidence about improvements since the inspection.
The Court of Appeal refused Hexpress’s appeal, but its judgment has clarified that once the CQC has sent its draft report, started the FAC process, considered the provider’s FAC response and provided a reply, the CQC is not under a duty to consider any further response from the provider. The reasons for this are essentially pragmatic – it would be a huge burden to the CQC if it potentially had to consider an unlimited number of FAC responses for each inspection, however well-intentioned or relevant the healthcare provider’s further submissions.
What does this mean for healthcare providers?
In light of the judgment, how can bad CQC ratings be challenged, particularly for providers who provide online services?
- The CQC’s evidence in the proceedings indicates that the CQC considers online healthcare providers as inherently riskier than those which see patients face to face. Therefore, online providers will need to take extra care with their overall governance and safety procedures to achieve the best possible results from CQC inspections, thereby hopefully achieving higher CQC ratings and the reputational benefits they provide. They should consider obtaining external advice well in advance of a CQC inspection to help identify areas for improvement before they result in a poor rating.
- When an inspection has been announced, healthcare providers can consider asking the CQC inspector for information about the likely scope and format of the inspection. The CQC may not be obliged to provide it, but there are situations where such information may be provided as a courtesy. A careful approach can elicit information that will help the provider to prepare thoroughly for the imminent inspection, so providers could consider obtaining external advice on this aspect.
- Once an inspection has started, the healthcare provider’s first FAC response is crucial to maximising the CQC rating. The FAC response needs to be appropriate in length and tone, yet also correct factual inaccuracies robustly, persuasively and with proper supportive evidence. It is now clear that there is no second chance to challenge factual inaccuracies before the CQC finalises its report, so healthcare providers should consider taking specialist external advice from lawyers to optimise the FAC response, identify any procedural unfairness, and thereby minimise the prospect of an unfair rating.
- Once a CQC report is finalised, there may be cases where the principles of procedural fairness have still been breached, or the report and ratings are still based on errors of fact. In those cases, the healthcare providers will need to instruct specialist lawyers urgently, to send the necessary Letter Before Action and start a JR action within the very short three-month deadline. A specialist lawyer can also advise on alternative courses of action, such as seeking an early repeat inspection to show the CQC that perceived problems have been corrected and the rating can be improved.
Healthcare litigation partner Tracy Sell-Peters with assistance from junior solicitor Ioana Rugina acted for Hexpress in relation to the Court of Appeal proceedings and for part of the judicial review challenge. If you need any assistance or advice with draft CQC inspection reports, or any other matters relating to CQC inspections or enforcement, or judicial reviews, please contact Tracy Sell-Peters.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.