Coincidentally, CQC also announced this week that duplicate material had been discovered in 78 inspection reports.  Two experts by experience, and one specialist advisor, had copied the same content into their reports presumably to save time.  In respect of 40 of the inspections, CQC republished the reports with the material removed.  However, CQC withdrew the publication of the remaining 38 reports where the material had been written by a specialist advisor.

Mr Noble, a lawyer himself, recognised that there will be exceptional cases where non-publication (or delayed publication) would be justified.

Is that right and if so, what would constitute ‘exceptional circumstances’?

To answer these questions, it is useful to ask how a court would approach the question of withdrawing inspection reports.

A court would take a different approach to delaying publication pending a final hearing into a challenge about the inspection, to making a final decision about an inspection report after trial.  CQC’s guidance should reflect that distinction.

Delayed publication

By a further coincidence, the High Court yesterday handed down judgment in a case concerning an application for an interim injunction to prevent publication of an Ofsted report[1].   ­­Ofsted inspected a state school and rated it ‘inadequate’.  The governing body profoundly disagreed with the report and brought judicial review proceedings challenging the decision.  It also applied for an injunction not to publish the report until the trial was heard.

The judge comprehensively reviewed the authorities in the area.  The duty to publish is a significant consideration.    There is a public interest in inspection reports being published to which courts attach great weight.  Accordingly, the court will only consider an interim injunction in extreme cases.    Phrases used in the case law include ‘exceptional circumstances’ (as used by Mr Noble), ‘most compelling reasons’ and ‘pressing grounds’.  Examples include:

• The public body had engaged in a vendetta
• Deliberate desire to inflict damage on the reputation of the person criticised
• Fraud
• Corruption
• Report is manifestly untrue or riddled with error

This is not an exhaustive list and decision makers must keep an open mind about what might exceptional.  As the allegations will not yet have been investigated, the test to apply is whether there is a strong prima facie (I would used the phrase ‘strong appearance’ in lay guidance) that an exceptional factor applies.

Relevance of CQC Quality Assurance

In this week’s case, the court was impressed with Ofsted’s quality assurance systems in relation to inspection reports.  That strongly influenced its judgment that a strong arguable case had not been made out that the exceptional circumstances applied.  CQC’s quality assurance systems, in contrast, were also the subject of recommendations by Mr Noble.  This week’s revelation about the 70 flawed reports shows that CQC’s quality assurance system has not been working for some time.  Furthermore, as I’ve previously argued, CQC remains in breach of a High Court judgment requiring it to consider providers’ challenges to CQC’s responses to factual accuracy corrections[2].  Complying with that requirement, rather than CQC managers cursorily reviewing every draft inspection report, would be a useful first step.   Until CQC can show that its quality assurance systems have improved, CQC should recognise that it is easier for providers to cross the threshold of a strong prima facie case.

Publication pending investigation

If CQC is not satisfied that there is a strong appearance that exceptional circumstances apply, it can lawfully publish the report pending an investigation into any matters raised.  As a matter of fairness, I would argue that CQC should also publish that the report is subject to an investigation and invite the provider, if it wishes, to summarise its concerns.  CQC should, of course, still go on to investigate the concerns.

Investigation and Final Decision

The requirement for ‘exceptional circumstances’ applies to the question of whether a court should withhold publication pending trial.   When it comes to a final decision, the court will apply conventional public law grounds which include:

1. Irrationality – making judgments are bizarre or perverse.
2. Failing to take into account relevant considerations.
3. Taking into account irrelevant considerations.
4. Failing to follow CQC’s internal guidance without good reason.
5. Bias.
6. Bad faith.
7. Unfairness – for example by not giving the provider sufficient opportunity to state its position, such as an inadequate response to factual corrections.

The court will give CQC’s view a great deal of deference because it will regard it as being an expert regulator with trained staff, tasked with undertaking an important function in protecting vulnerable people.

If the grounds are made out, the court will then go on decide whether, in its discretion, to grant a remedy, for example a mandatory order requiring CQC to withdraw the report.   Given the high hurdle that the claimant would have cleared to reach this stage (especially deference to CQC), courts are likely to provide some remedy.

CQC is better placed than a court to investigate breaches of public law and so should do so in a fair and open manner  When public law grounds are made out, CQC should pull the report unless the report is capable of remedy, for example where some offending material can be withdraw without affecting the balance of the report, as CQC appeared to have found in respect of the reports containing duplicated expert by experience material.

In summary:

1. CQC should withdraw a report pending investigation when there is a strong appearance that exceptional circumstances apply.
2. If CQC publishes a report that is subject of a complaint, it should publish that fact, and a summary of the provider’s complaint if the provider wishes.
3. CQC should investigate all complaints about inspections.
4. CQC should apply standard public law principles to its final decision regarding publication.
5. If it is in breach of public law duties, CQC should withdraw the report unless the breach can be remedied in some other way.

Please get in touch if you need advice about your CQC report or help setting out your complaint to CQC.

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: [email protected]

[1] R (on the application of the Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWHC 69 (Admin)

[2] R (on the application of Ssp Health Ltd) v Care Quality Commission (2016)