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CQC decision ‘proportionality’ to be challenged by judicial review

A London online healthcare provider has been given leave to seek a judicial review the lawfulness of a CQC’s rating decision.

In the case, explained by law firm Burges Salmon, the claimant will challenge the proportionality of the decision taken by the CQC to downgrade the rating of Hexpress Healthcare Limited to requiring improvement.

Between April 2021 and August 2021, five incidents took place in relation to the service, two of which resulted in fatal overdoses of propranolol. The CQC undertook an inspection, examining a sample of medical records. The CQC randomly selected nine to review out of 60,000 medical records but due to technical reasons, they were only able to sample six records (representing 0.01% of patients). Out of those six records, five presented concerns.

The CQC provided its draft report to the provider, rating the service as Requiring Improvement, with the safety element rated as being inadequate. Previously, the provider was rated as good. At the factual accuracy stage, the provider submitted a response but the CQC responded to say that its ratings would not be changed.

The provider issued an application to judicially review the findings and seek an interim injunction restraining the CQC from publishing the report pending further order. However, of the five applications for challenge and the injunction, only one challenge – that the CQC acted disproportionately – was given leave for judicial review.  

The Court explained the leave decision: “The key question is:  can a generalised criticism that the provider’s standard of safety is “inadequate”, or that its standards of effectiveness and leadership “require improvement”, logically and fairly be extrapolated from six medical records out of 60,000? It will be for the trial judge to balance individual fairness against the resources of the guardian of the public’s health, safety and welfare.” 

The full judgment can be read here

CQC data demonstrates that as of 31 December 2019 (latest published dataset), the odds of success at the rating review stage are low. Of 970 total rating reviews requested, fewer than 3 per cent resulted in a change to the ratings, either to a specific or overall service rating. 72 per cent of rating reviews submitted were closed having failed to set out proper grounds for review.

This dataset additionally shows that reviews relating to hospital care are the least common but are the most successful, with a 16 per cent success rate in increasing the rating attributable to a particular element of care. The great majority (79 per cent) of rating review processes submitted relate to adult social care services.

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