Court case has major significance for the regulated care sector

Introduction

A recent Court of Appeal case, Hexpress Healthcare Limited v Care Quality Commission, has major significance for the regulated care sector.

Background

Hexpress Healthcare Limited is an online medical service which prescribes medication to patients via an online form reviewed by a doctor.

Following a CQC inspection in May 2022, Hexpress received a draft inspection report with an overall Requires Improvement rating, as well as an Inadequate rating under the Safe domain. Hexpress challenged the draft report through CQC’s factual accuracy comments (“FACs”) process.

Some amendments were made by the regulator, however Hexpress was not satisfied with the final report.

In October 2022, Hexpress applied to the High Court for permission to judicially review CQC, as well as seeking an interim injunction to stop the publication of the report.

First instance decision

The application for an interim injunction was dismissed by Mostyn J in November 2022, however he did grant Hexpress permission to judicially review CQC on one of ground of challenge: that CQC acted disproportionately by using only six medical records as its sample.

Hexpress was next granted leave to appeal to the Court of Appeal on two grounds:

(1) CQC failed to independently review its FAC response, which was procedurally unfair; and

(2) the final report contains error of fact or else gives undue weight to irrelevant factors. Specifically the CQC should have taken into consideration additional evidence provided and remedial steps taken by Hexpress since the inspection.

Court of Appeal decision

The case was heard by the Court of Appeal on February 16 and its judgment was issued on March 6. Both grounds of appeal were dismissed for the following reasons:

(1) The Court of Appeal noted that following the case of R (on the application of SSP Health Ltd v Care Quality Commission) in 2016, CQC had amended its FACs process by bringing in an independent inspector unconnected with the inspection to review the provider’s FACs after the lead inspector had