Hexpress Healthcare Ltd statement on 2022 CQC Inspection Report

A High Court Judge ruled that the CQC has potentially acted disproportionately and irrationally when assessing Hexpress Healthcare’s service. The Court of Appeal has also ruled that there are realistic prospects in arguing the CQC’s report is also potentially procedurally flawed, unfair, contains ill founded and erroneous conclusions, whilst also failing to take into account the complete evidence available to the inspection team.

(This statement will take 3-4 minutes to read and is a summary of the Approved Judgements)

1. Hexpress Healthcare Ltd (Hexpress) registered with the CQC in 2018 and the service was found to meet all the regulations to be safe, effective, caring, responsive and well-led. At the 2019 inspection the service was rated “Good” Overall and in all 5 categories. On 12 July and 13 September 2021, the CQC carried out a remote review of the provider’s service and was satisfied that no further inspection was required. It is well recognised that the publication of a report has the potential to wreak serious and often irreversible economic and reputational damage. That is why the CQC should be held to account with a higher responsibility to publish accurate reports that do not cause undue concern to past, current and future users of the service or stakeholders, and therefore provide an up-to-date snapshot of the service being provided.
2. Despite the CQC recognising the potential unfairness of it publishing a report without affording even the most limited “Maxwellisation” process (i.e. giving a person criticised in the report the opportunity prior to publication to identify factual errors and to seek their correction), it decided to rush through the publication of a report (within 48 hours) even though numerous inaccuracies still remained in the CQC’s report. Accordingly, Hexpress had no other option but to apply to the High Court for an Interim Injunction to prohibit the publication of the report whilst it sought permission to seek Judicial Review of the decision to publish a report with factual inaccuracies.
3. On 25 November 2022 a High Court Judge ruled that the CQC have potentially acted disproportionately by using only six medical records as its sample, potentially having irrationally assessed the safety of the provider’s services through a report containing errors of fact or giving undue weight to irrelevant factors. Out of 60,000 medical records selected in the cohort, the CQC’s Specialist Advisor randomly selected 10 to review. However, 4 of those the CQC inappropriately discarded and subsequently inaccurately reported these records as producing no evidence. Therefore the sample size was 6, representing 0.01% of the patient records available to the inspection team. One in ten NHS prescriptions are classified as a prescribing error. It has been estimated that is nearly 237 million a year at a cost to the NHS of £98 million. Hexpress had one out of a possible 60,000 prescriptions from the medical record cohort selected by the inspection team.
4. The Judge ruled that “conclusions…based on…a tiny sample…illustrates the perils of using statistically insignificant samples” that “no reliable conclusions about anything could be drawn from it.” Hexpress has argued that no reasonable or rational regulator would draw such an overarching conclusion based on such a small sample and therefore the CQC’s approach was fundamentally limited and flawed. This has also been supported by statistical expert evidence.
5. The Judge stated that “the report asks the reader to travel back in time to 17 May 2022. The problem with this journey back in time is that it is not a consistent one because there are some references to subsequent events in the report. I have found the language of the report jumping between different time zones, less than completely clear. I think that there is some force in the criticism that the finding does not appear to pay much regard to the remediation steps taken by the provider since the inspection… Further, all comments relating to subsequent events ought be put in a separate section with a heading such as “events after the inspection”.”
6. The Judge said that Hexpress “will no doubt be able to point to the terms of this Judgement to demonstrate that the application to quash the report is going ahead, the court having found that there was an arguable case to take to trial.”
7. The Court of Appeal has ruled that the appeal against the refusal to grant permission for Judicial Review has realistic prospects of success on the grounds that the CQC’s approach is potentially flawed because of procedural unfairness and potentially ill founded and erroneous conclusions of the inspection team. Hexpress will keep you posted on the outcome of the Judicial Review and Court of Appeal hearings.
8. We have attempted to work with the CQC to achieve a mutually agreeable report in order that all our service users and stakeholders are kept fully informed of the latest service provision, but the CQC have not wanted to engage in this dialogue.
9. Given the delay since the inspection in May 2022, and the subsequent improvements made to the service, the High Court Judge had concerns about how up to date the report would be. We believe that there is no need for the Requirement Notices as we have already made changes to the service. These steps were undertaken before the final report was published but we say the CQC have unfairly refused to take them into account.
10. It was only under questioning from the High Court Judge that the CQC admitted that they would be inspecting Hexpress Healthcare again in the first quarter of 2023. In the meantime, we will be issuing a Ratings Review of the well out of date inspection report and the associated ratings.