Ongoing concerns over apparent bias and conflicts policy at the CQC

Consistency in Care Quality Commission inspections has been described as not merely an operational issue, but essential to procedural fairness, accountability and trust in the regulator. The recent High Court and Court of Appeal decisions in Cygnet Health Care Ltd v Care Quality Commission have brought this issue into sharp focus, with important lessons for the regulator. Further concerns have now been raised, regarding the CQC’s approach to menopause clinic, Newson Health.

Cygnet’s judicial review challenged the CQC’s approach to apparent bias, its compliance with its own Conflicts Policy, and several of its inspection reports. The Courts allowed the challenge finding that the CQC’s inspector was apparently biased, the CQC’s reports and enforcement action were affected by that bias, and that the CQC had failed to follow its own Conflicts Policy in this and other cases.

Newson Health, a menopause and wellbeing centre, has had cause to challenge the CQC in similar circumstances where they had serious concerns relating to CQC’s governance of its conflicts and approach to bias in inspections.

Newson’s challenge was made despite CQC saying (article behind paywall) that it was "carefully considering the [Cygnet] ruling and assessing next steps" and "taking steps to review [its Conflicts and Declaration of Interests] policy and address this."

While Cygnet’s case has raised important issues for the regulator, requiring the CQC to take steps to improve transparency and mitigate any risks of apparent bias and conflicts of interest, this is not our experience of supporting Newson Health.

Failure to learn lessons?

Newson Health raised similar concerns as Cygnet in its judicial review of the CQC. Newson Health’s serious concerns focussed on the lack of impartiality within the regulator’s inspection team as we explain.

Briefly, Newson Health’s concerns related to CQC’s wrongful:

• Involvement of a specialist advisor tainted by actual and or apparent bias.
• Decision to continue the inspection in the face of serious allegations of actual and or apparent bias, and/or its refusal to pause the inspection.

The issues arose in the unusual context of:

1. The CQC’s specialist advisor working for a competing private menopause clinic.
2. The CQC’s specialist advisor sitting on the Medical Advisory Council (MAC) of a menopause charity, the British Menopause Society (BMS), which has, along with members of its MAC, been critical of Newson Health.

It was clear to Newson Health that this was – as is the issue with bias – tainting the views of the entire CQC inspection team. For example, the inspection team asked Newson Health about BMS guidelines and BMS accreditation, despite it not being an appropriate standard against which the CQC should inspect menopause clinics (the BMS being a charity that has no regulatory or educational standing).

The regulator’s approach here was inconsistent with its professed values in its Declaration of Interest and Resolution of Conflicts Policy.

The CQC in its conduct with Newson Health breached the well-established principles of procedural fairness and natural justice by failing to address Newson Health’s early concerns when they were first raised (before the inspection even began), and when they were raised again as the inspection continued.

Following correspondence under the pre-action protocol, the day before the deadline to issue judicial review proceedings, the CQC agreed to stop its inspection into Newson Health’s specialist provision of menopause care, which began in October 2024.

The CQC has now confirmed a new inspection will be carried out following the appointment of a new impartial inspection team, in a move that is not typical from the CQC.

This has avoided the need for the issue of bias within the inspection team to be decided by the High Court and is an important step in maintaining regulatory fairness and patient trust, particularly in an area of women’s health which has long been adversely affected by confusion and conjecture.

Comment

It is of concern that this is yet another case of CQC failing to follow its own conflicts policy and taking steps to avoid bias in its inspections. With the Newson Health matter falling so close to the Cygnet decision, providers will want to know – and be assured – that the CQC is investing in learning from the outputs of these two matters.

And finally. The seriousness of the impact of the CQC’s conduct on healthcare providers, cannot be underestimated, in terms of operational issues, financial costs, reputational risks and the emotional burden on providers involved in both inspections and challenging CQC processes. 

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