Court of Appeal: Refusal of permission to appeal is the end of the road for CQC

In a decision that will be of interest to health and care providers, the Court of Appeal has refused the Care Quality Commission’s (CQC) application for permission to appeal the High Court decision in R (Cygnet Health Care Limited) v Care Quality Commission 2025, an important judicial review challenging the CQC’s approach to apparent bias, its compliance with its own conflicts policy, and several inspection reports. 

Cygnet’s claim arose following CQC’s appointment of an inspector tainted by apparent bias due to his historic connection as a service user in two of Cygnet’s hospitals. The CQC eventually admitted failure to follow is own conflicts policy. The High Court allowed the challenge following a two-day hearing, finding that 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.

The High Court judge refused the regulator’s application for permission to appeal. The regulator then proceeded to seek permission from the Court of Appeal, seeking to challenge the judge’s findings and the evaluation of the evidence and overturn his decision, which is a high bar. On 2 April 2025, the Court of Appeal refused the CQC’s application for permission to appeal. It is now the end of the road for the regulator. 

The point of broader interest to health and care providers is likely to be why the CQC chose to take further action, disregarding the High Court’s findings and judgment. We expect that many providers will be disappointed to know that the CQC invested in challenging the High Court’s decision, rather than investing in learning from it. Some might argue that this is a classic case of the regulator of health and social care “failing to take its own medicine”.

One of the grounds of appeal put forward was that the High Court was wrong to treat breaches of the CQC’s conflicts policy as indicative of a real possibility of bias. This ground relates to the reliance by the High Court on the CQC’s failure to follow its own conflicts policies because the decision to appoint the inspector to the Cygnet role was not taken by a sufficiently senior person, and because the inspector failed to renew his interest declarations prior to each inspection. The Court of Appeal found that the breach of the CQC’s conflicts policies to which the High Court had principal regard was “AA’s failures to disclose these complaints which was required by CQC’s policy” (ie, the complaints he had made about Cygnet’s treatment of him). The Court of Appeal also found that the High Court correctly noted that, as a result, CQC’s own policy showed that a conflict existed throughout.

The Court of Appeal notes Justice Chamberlain in R (CPRE Somerset) v South Somerset District Council [2022] EWHC 2817 (Admin) where “breaches of conflicts policies are not determinative but nevertheless are a relevant factor in considering apparent bias”. The Court went on to conclude that there was “no arguable error of law in the judge taking into account the CQC’s failure to follow its own conflict policies, and the appellant does not meet the high burden for challenging an evaluative judgment”.

Comment

This case raises important issues for the regulator and health and care providers. Regulators like the CQC must take steps to improve transparency and mitigate any risks of apparent bias and conflicts of interest. Ensuring impartiality and fairness is not just about avoiding explicit bias but also avoiding perception of bias. 

We anticipate this case may prompt other healthcare providers to consider challenging the CQC in similar circumstances where they have serious concerns relating to CQC’s governance of its conflicts. 

Challenging the CQC is very difficult for health and social care providers because of the clear power imbalance and ongoing nature of the relationship. Few providers feel able to do it. Cygnet’s challenge has revealed systemic failures and will therefore benefit other providers in the sector.

If you’d like to discuss any of the issues raised here, please contact Amanda Narkiewicz. 

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