A recent Court decision found that CQC repeatedly failed to follow its Conflicts policy, resulting in CQC decisions being taken with apparent bias
Nythan Smith, Principal Associate and specialist health and social care regulatory lawyer, discusses the outcome and implications of a recent Judicial Review decision in Cygnet Health Care v Care Quality Commission [2025].
The case, brought by a healthcare provider, centred on CQC’s decision not to review inspection and enforcement activity following a challenge to the involvement of an inspector whom the provider alleged to have carried a level of bias which should have recused that inspector from involvement in decisions about it. The care provider submitted that the inspector had apparent bias owing to that inspector having formerly been cared for by it and also having historically made complaints against it.
The test to meet in determining whether that inspector was to be thought to have apparent bias is “whether a fair-minded and informed observer, having considered all the relevant facts, would conclude there existed a real possibility of bias”. In this case, the court found that apparent bias did exist, but that bias did not extend to all of the inspection and enforcement activity that that inspector was involved in, and against which the care provider complained. The court noted that there were examples of consideration of all evidence available by CQC and the inspector in question.
CQC failed to act in line with its Conflicts Policy, which states that the decision whether someone should be allowed to inspect a service five years after someone has been engaged with a service should be taken at Chief Inspector/Deputy Chief Inspector or Director level. The person who took the decision to involve the inspector in regulatory activity of the provider held a more junior position than that which the policy dictates. Not only was the initial decision to allow the inspector to engage with the provider flawed, but CQC also failed in its subsequent decision to refuse to review the relevant matters when responding to the care provider’s complaint regarding alleged bias.
During the course of proceedings, CQC conducted a review of the evidence and justification for its findings and in respect of adherence to its Conflicts Policy. Its findings were that no apparent bias existed and that all actions taken were proportionate. The court found that apparent bias did exist and that CQC has been ordered to review its decision in respect of the publication of one of its inspection reports.
Comment
This case, whilst set against a unique set of facts, highlights the need for providers to hold CQC to account when apparent bias is alleged. Apparent bias does not require the person that is alleging that bias to prove that bias existed, only that a reasonable person would conclude that bias could possibly exist. The appearance of fairness and impartiality is as important as the actual act. Providers should review CQC’s Conflicts Policy and consider whether grounds to challenge the involvement of individuals in regulatory activity exist as part of a holistic approach to managing the regulated activity. The point of wider import to providers may be to closely scrutinise CQC policies against which they act and hold CQC to account when they depart from them.
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