RIP SSP – Procedural fairness and the FAC process – 8 March 2023
The Court of Appeal has given a firm view on whether the CQC’s FAC process is procedurally fair.
R (on the application of Hexpress Healthcare Ltd) v Care Quality Commission[1] was an appeal against the refusal of permission for judicial review on two grounds including that the factual accuracy check (“FAC”) process was unlawful on the grounds of unfairness.
The CQC sent a draft report to the Claimant, an online pharmacy upon which it submitted a response in line with the CQC’s FAC process. In accordance with the CQC’s current practice, the lead inspector completed a response which was reviewed by an inspector independent of the inspection. The report was subsequently published (though, in fact, it was subject to further changes following the FAC process through dialogue after the judicial review claim was issued).
The Claimant remained dissatisfied with the report and argued that fairness required that the CQC consider its response to the CQC’s reply to its FAC submission, relying on the case of SSP[2] which appeared to require such a step.
At first instance, Mostyn argued that the ground of challenge was unarguable as it would be “elaborate, and time-consuming”, and “a work of supererogation”.
Usually, judgments relating to whether a ground is arguable may not be cited in courts in England and Wales. In the present case, the Court of Appeal expressly stated that its judgment may be cited as it clarifies conflicting authorities on the issue.
The Court of Appeal noted that the declaration made by the court in SSP differed from the grounds of challenge made. Likely as a consequence of that, none of the leading authorities on procedural fairness were cited. Having analysed those authorities, the Court of Appeal came to the firm view that:
“the process adopted by the CQC of: sending Hexpress the draft report; permitting Hexpress to comment on the draft report through the FAC process; considering those comments through the lead inspector and another inspector independent of the inspection of Hexpress and making the modifications considered appropriate in the light of the FAC comments; before producing the final report; was procedurally fair.”
The Court of Appeal has therefore given a very clear view that the CQC does not have a duty to have a process to consider providers’ responses to CQC’s reply to providers’ FAC comments. It held:
“It was for the CQC, as the statutory regulator, to decide what processes to undertake to discharge its duties of procedural fairness, and the CQC reviewed its processes in the light of the decision in SSP Health. The CQC has adopted a process of reviewing the FAC comments first by the lead inspector before having that review considered by an inspector independent of the inspection. That process should ensure that any demonstrably wrong or misleading statement is corrected. In my judgment the process undertaken by the CQC in this case was fair.”
What this means for providers
Clearly, there may still be cases where the CQC makes erroneous findings of fact, or findings of fact or judgments that are unreasonable (in the sense of being so unreasonable that no reasonable regulator could have made them). In those cases, providers will need to respond with a pre-action protocol letter for judicial review followed by a claim for judicial review if the CQC does not agree the amendments. All claims for judicial review must be filed promptly, and in any event not later than 3 months after the grounds to make the claim first arose, so swift action is essential.
As there is no automatic right to a second bite of the cherry, it is also essential that FAC comments are comprehensive, persuasive and supported by robust evidence.
Please get in touch with us if you need any help with draft inspection reports or any other matters relating to CQC inspections or enforcement: jlandau@healthcarecounsel.co.uk
[1] [2023] EWCA Civ 238
[2] R (on the application of SSP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin)