Some regulators are impervious to criticism and use public funds to defend indefensible actions. The latest example of this is the Care Quality Commission, as set out in the reported Judicial Review decision of Cygnet Health Care Limited v CQC. Essentially, the facts are:
~ A nurse, AA, was involuntarily detained under the Mental Health Act at a number of Cygnet hospitals.
~ During his detention, AA made serious complaints about the adequacy of
Cygnet’s care and treatment of him.
~ Following his discharge from Cygnet, AA decided to pursue a new career as a CQC Inspector rather than return to nursing.
~ CQC proceeded to appoint AA as Inspector and ‘relationship owner’ for Cygnet’s London hospitals, which included two hospitals at which AA himself had been detained under the Mental Health Act.
~ Unsurprisingly, the High Court has now found that a number of CQC’s decisions in respect of Cygnet’s hospitals were tainted by apparent bias on the part of AA and those decisions have been quashed.
It is astonishing to me that CQC did not recognise, much less voluntarily resolve, the impression of bias and conflict of interest on the part of AA. CQC defended its position all the way to hearing and now has to pay 90% of Cygnet’s £550,000+ in legal costs as a result. Even more depressing, CQC refused to participate in mediation proposed by Cygnet.
The full Judgment can be read at https://lnkd.in/eqQAX9Qt
A wider principle of note for regulatory lawyers is that the Court confirmed that there is no different legal test or any additional principle to apply to an issue of bias or apparent bias in the context of regulation. The legal test for apparent bias remains Porter v Magill (whether a fair-minded and informed observer, having considered all the relevant facts, would conclude that there existed a real possibility of bias).