2023-03-28 11:15:11
On 3 January 2023, we reported on a case in which an online pharmacy, Hexpress, challenged inspection findings by the Care Quality Commission (CQC) and sought an injunction to restrain the CQC from publishing a report that contained ratings varying from “inadequate”, to “requires improvement” up to “good”, leading to an overall rating of “requires improvement”. Mr Justice Mostyn gave permission to apply for judicial review on one ground and refused an injunction for the reasons set out in our report on 3 January.
Hexpress were refused permission to appeal against the dismissal of their injunction application but appealed against the refusal to allow them to apply for judicial review on two further grounds. The Court of Appeal recently gave its judgment in The King (on the application of Hexpress Healthcare Limited) v Care Quality Commission [2023] EWCA Civ 238. Permission to appeal against the refusal of an injunction was refused. The appeal to the CA was only on the question of whether Hexpress could apply for judicial review on two additional grounds
1. Hexpress argued that the processes of the CQC were procedurally unfair because all of its challenges to the draft report were not reflected in the final report. However, the Court of Appeal ruled that it was up to the CQC, as the statutory regulator, to decide what processes to undertake to discharge its duties of procedural fairness. If the CQC constantly had to go to and fro with a service provider before a report was published, there would be unreasonable delays before reports could be published.
2. Hexpress complained that CQC had acted irrationally when judging the level of service, in failing to take account of improvements Hexpress had made after receiving the draft report (for example, ceasing to supply certain medicinal products). The Court of Appeal held that the CQC acted lawfully in rating Hexpress on the service that it was providing at the date of the inspection. It was for the CQC, as the statutory regulator, to choose the date on which to rate Hexpress, unless such a choice was irrational. The CQC could report the improvements that Hexpress had made following the inspection, but that did not mean that it became irrational to choose the date of the inspection for making the ratings.
These issues were preliminaries to the substantive judicial review hearing which was due to take place on 23 March so presumably judgment is awaited: we will report the outcome when the judgment has been delivered.