Injunctions to restrain publication of CQC reports

January 25th, 2018 by Jonathan Auburn

When should a provider of health or social care be granted an interim injunction to restrain publication of a report by the Care Quality Commission which is critical of its services? Not often, seems to be the answer, as was confirmed by Lang J in R (Ideal Carehomes Ltd) v Care Quality Commission, CO/5497/2017, Administrative Court, 19 January 2018 (the case is presently only reported on Westlaw). The authorities at first instance are consistent in making it clear that only in a compelling or exceptional case should the Administrative Court act to restrain the publication of a regulator’s report made in the public interest pending the determination of a judicial review application. Usually, an injunction will be ordered only in cases of fraud, malice or bad faith, or where a report is so flawed that it can properly be characterised as “manifestly untrue” or “riddled with errors”.

In the instant case, Ideal Carehomes fell well short of the mark. They had had two recent critical inspections of the care home in question, and the shortcomings identified by the CQC’s inspectors were significant and numerous. On the facts, Lang J found their criticisms of the CQC’s report to be unfounded, although she did not determine the question of permission. In the circumstances, there could be no basis for stifling the CQC’s report, nor for anonymising the proceedings. Furthermore, there was no basis for halting the Notice procedure initiated by the CQC to vary the Claimant’s license so that it would no longer be registered to provide care services at the home. There was a separate statutory procedure for representations to be made under the Health and Social Care Act 2008, and then an appeal to the First Tier Tribunal, so the Claimant should not be allowed to stop the variation process through judicial review proceedings.

However, Lang J rejected a further argument by the CQC that the Claimant had to overcome the additional hurdle imposed by section 12 of the Human Rights Act 1998, which applies “if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression”. Where section 12 is in play, no relief may be granted so as to restrain publication before trial unless the court is satisfied that the applicant is “likely to establish that publication should not be allowed”. The right to freedom of expression contained in Article 10 of the Convention includes the right to receive information. The CQC argued that, although it could not rely on this right, being a public authority itself, the exercise of the Article 10 rights of the residents of the Claimant’s care home and their relatives might be affected by the grant of the interim injunction.

Lang J rejected this argument, on the basis that the residents were not parties to the proceedings and so were not “victims” asserting any breach of their Article 10 rights. This analysis is open to question. The residents were not yet aware of the report, and so were hardly in a position to bring proceedings, particularly if it was stifled by the Claimant’s application, the whole purpose of which was to prevent them and others becoming aware of the report. Moreover, section 12 merely requires that the relief, if granted, might affect the exercise of the Article 10 right. It does not require that the relevant right must be that of a party to the proceedings, nor that they need be aware that their right might be affected. This issue, therefore, remains open to further argument in subsequent cases.

Daniel Stilitz QC appeared for the Care Quality Commission

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