Rotherham Private Hospital Ltd v Care Quality Commission, Court of Appeal, December 29, 2010, [2010] UKFTT 644 (HESC)

Resolution Date:December 29, 2010
Actores:Rotherham Private Hospital Ltd v Care Quality Commission
 
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[2010] UKFTT 644 (HESC)1In the First-tier Tribunal Between:Rotherham Private Hospital LtdApplicantVCare Quality CommissionRespondent[2010] 1740 EADECISIONPanel Tribunal Judge Nancy Hillier Ms Margaret Diamond (Specialist member) Ms Linda Redford (Specialist member)Hearing held at Liverpool SSCSA on 15th to 19th November 2010.Deliberations held December 2010.The Appellant was represented by the Applicant Dr Promod Bhatnagar. He called Adam Kennaugh, Birkdale Clinic Registered Manager, as a witness and gave evidence on his own behalf.The Respondent was represented by Ms Lisa Sullivan of Counsel. She called the following witnesses to give evidence: Alan Swain (Compliance Inspector CQC), Julia Gordon (Compliance Inspector CQC), Christine Evans (Performance Assessor CQC), Brian Silverwood (Compliance Inspector CQC), Ian Biggs (Regional Director for CQC), Amanda Musgrave (Compliance Manager CQC) and Julia Roper (Compliance Inspector CQC).APPEAL1. By notice dated 31st March 2010 the Applicant appeals pursuant to section 21 Care Standards Act 2000 (CSA 2000) against the Respondent's decision to refuse to register the Appellant, Rotherham Private Hospital Ltd (``Rotherham'') as the provider of an Independent Hospital with (1) acute hospital services and (2) class 3B or class 4 laser services at the Birkdale Clinic, Clifton Lane, Rotherham under sections 17 and 19 of the CSA. Rotherham is a limited company and the sole director is the Applicant, Dr Bhatnagar.PRELIMINARY MATTERS2. The Applicant raised as a preliminary issue the question of whether the Tribunal should take into account an inspection undertaken in October 2009 of Parkfield Hospital Ltd (Parkfield), which was at that time providing services at the Birkdale Clinic site. Parkfield was in administration. The Applicant's plan was to use the Rotherham Private Clinic (Rotherham) to take over running the clinic free of the debts associated with Parkfield. He submitted that the Tribunal should exclude this inspection from the consideration of the evidence before it because the inspection did not relate to the application to register Rotherham, which had been the subject of a registration inspection in June 2009.3. The Respondent submitted that it would be highly inappropriate for the Tribunal to exclude the evidence which gave a picture of how the services were being provided by the same staff and same management team at the same premises as the proposed provider, Rotherham. Miss Sullivan cited the cases of HM Schools v Spicer [2004] EWCH 440 (Admin) and the case of Peter Jones v CSCI [2005] 426.EA. In the case of Spicer, Miss Sullivan submitted that the similar facts, albeit under the different regime of childminding, were directly analogous to this case. Carol Spicer was a childminder whose registration had been suspended. There was a further inspection before the cancellation hearing and the Tribunal considered whether it was appropriate to take the later evidence into account. They concluded that on a rehearing, rather than a review, the later inspection was relevant evidence. The provisions under consideration have similar wording to section 21 of the Care Standards Act 2000 (CSA 2000). Peter Jones was cited to demonstrate that the appropriate date for determination, on the same statutory question, is the date of the hearing.4. The Applicant submitted that the key issue was that Rotherham and Parkfield were entirely different legal entities. Parkfield was incorporated in 1999 and Rotherham in March 2009. He submitted that the only reason that Rotherham had to apply for registration was that it was a separate legal entity. He had approached CQC Lead Inspector Alan Swain to discuss whether Rotherham could simply take over when Parkfield went into administration, because he wanted to achieve seamless service from Parkfield to Rotherham. Mr Swain had directed him to apply for registration. 5. The Applicant considered that the matter was analogous to a sale and he directed us to guidance which was available on the website at the time entitled ``Operational Guidance Information'' September 2008. He provided us with a copy of that guidance. He believed that since there were only 4 outstanding requirements relating to Parkfield, later reducing to 3, CQC should simply inspect those requirements in respect of the Rotherham application. When they did not do that, inspecting all standards in relation to the Rotherham application, the Applicant was unhappy but he agreed that the Tribunal could and should take that June inspection into account. He submitted that the October inspection of Parkfield, arising from concerns raised by the Rotherham application inspection in June, should be ignored completely because the inspection was of the existing rather than the proposed provider.6. The Applicant asked the Tribunal to ignore Spicer and Peter Jones on the grounds that they were too ``legalistic''. He said that in those cases it was the same person being inspected, which meant that the cases were not applicable because Parkfield was a separate legal entity from Rotherham. He also submitted that many staff had left because of the financial difficulties, and therefore there would be a different staffing regime.7. The Tribunal concluded that it would be artificial and wrong in law to disregard the October inspection. The reasons for this were that the panel were considering the matter as things stood in November 2010, unfettered by past decisions. Further, the panel was not satisfied that the ``Operational Guidance'' had any real relevance to the application. There was no sale, and the guidance was really provided for the new registration of existing registered services following sale. The Applicant tried to squeeze the facts of this case into one of two models of sale in the guidance because he wished to demonstrate that only the three outstanding requirements should have been considered in the registration process.8. The guidance states at page 7 that registration can only be granted under s.13 of the CSA 2000 ``where you are satisfied that the requirements of this Act and the regulations are being met and will continue to be met''. The Tribunal has to decide whether to confirm the Commission's decision or to direct that it has no effect, or to impose any conditions it thinks fit. The Tribunal must make its decision afresh and is not limited to a review of the Commission's decision. The panel decided that effectively to erase part of the history of this matter would be highly artificial. The inspection was of the same premises, and almost exactly the same working practices and management team as would have operated under Rotherham, a fact which the Applicant stressed on several occasions. The evidence was therefore admitted.THE LAW9. Where an application to register is made under section 12 of the Care Standards Act 2000 (CSA), in respect of an establishment or agency, the registration authority must be satisfied that the requirements of any regulations and other relevant enactments are being and will continue to be complied with in relation to the establishment or agency. If so satisfied, section 13(2) provides that the application must be granted. If not, the application must be refused.10. Under section 13(3), the application may be granted unconditionally or subject to such condition as the registration authority thinks fit. Section 21 of the CSA provides that an appeal against a decision of the registration authority shall lie to the Tribunal.11. On appeal, the burden of proof is on the Appellant to prove that it should be granted registration under section 13 CSA. The standard of proof is the civil standard, namely the balance of probabilities. However, the Tribunal takes an inquisitorial, or investigatory, approach, rather than a strictly adversarial one, to the hearing of appeals in this jurisdiction. This approach is reinforced in its procedural rules and reflects the observations on the burden of proof made in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 W.L.R. 1372. In essence, this is a fact gathering exercise governed by equitable principles and by the overriding objective set out in Rule 2 of the Health, Education and Social Care Chamber Rules 2008.The general principle is that each party must provide sufficient evidence to support their case, but where relevant information is available to the Respondent, an organisation with greater resources than the Appellant, it is for the Respondent to produce that information.12. In this case, it is the Respondent's position that the Appellant did not fulfil the criteria for registration at the time of the application and continued not to fulfil the statutory criteria at the time of the hearing. BACKGROUND13. At the time the application for registration of the Appellant was made, Birkdale Clinic (Rotherham) Limited (``Birkdale Rotherham''), which later changed its name to Parkfield Hospital Limited (``Parkfield''), was providing services at the Birkdale Clinic, Clifton Lane, Rotherham (Birkdale Clinic). This included cosmetic surgery, laparoscopic insertion of gastric balloons and gastric banding, laser hair removal and eye surgery. 14. Parkfield is a limited company and the sole director is Dr Bhatnagar. Parkfield is now in administration. A notice of proposal to cancel registration was served on the Applicant on 27th July 2010 and the notice of decision was dated 28th September 2010. This appeal relates only to the refusal of registration of Rotherham's application. 15. Birkdale Clinic has been a registered private hospital since the 1980s and was run by Parkfield from March 1999. In early 2009 Dr Bhatnagar notified Alan Swain, a CQC compliance officer, of a possible change of provider due to the increasingly perilous financial position of Parkfield. Mr Swain was the lead inspector for Parkfield at that time. An application was submitted on 16th March 2009 but was returned as it...

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