AC-2024-LON-001142 - [2025] EWHC 2015 (Admin)

While not entirely accepting the claimants’ position as to the standard of review required in this case, the CQC’s position was that this was unlikely to be determinative; allowing for the fact that vulnerable children could be impacted by the decisions in question, it was submitted that the court was nevertheless required to afford due respect to the assessment and evaluation it had carried out as the expert regulator. As for the Padfield challenge, as had been acknowledged in oral argument, this added nothing to the claimants’ case on rationality.

As for the first decision under challenge, registration had required a binary decision in January 2024, at a time pre-dating the 21 March 2024 policy, the new NHS gender service, the Cass Review final report, and the guidance regarding NHS new patient referrals from 1 September 2024; little of the way in which the claimants’ case was now put had relevance to the registration decision. The assessment decision in December 2024 involved a rating evaluation; it was the claimants’ case that this should have led to a withdrawal of registration/the attachment of further conditions, but that would have been inconsistent with the overall outstanding assessment.

Turning to the substance of the case now pursued by the claimants, it was important to bear in mind the CQC’s role: it did not regulate the prescription of drugs/the treatment provided; it did not (and could not) audit each individual decision. The only question for the CQC was whether the provider was complying with the requirements of the 2014 Regulations (and the patient referral data relied on by the claimants could not answer that question). Further, the legislation did not drive the conclusion that this must replicate NHS processes, albeit the CQC had made clear that it looks to private providers to seek to emulate standards in the NHS, and, in its decisions regarding IP1, it had had regard to NHS standards and policies, finding that IP1 was adequately aligned to these.

For the CQC it was submitted that it was significant that the claimants had not taken issue with the detailed evidence provided as to the assessments undertaken leading to the CQC’s registration or assessment decisions. As for the distinctions drawn by the claimants between the NHS and IP1 (such as IP1’s inability to access the NHS national MDT), these arose from/related to structural aspects of the NHS, which could not be determinative of the registration or assessment decisions the CQC was required to undertake. Having been unable to challenge the substantive findings made by the CQC as to IP1’s alignment with the 21 March 2024 policy within the NHS, the claimants’ position had been that NHS policy had moved on, and they emphasised the Cass Review recommendation of “extreme caution”. However, no new public policy had been published at the time of CQC’s assessment decision and there was no agreement on what “extreme caution” required; it was not irrational for the CQC to have regard to that which was the public statement of the NHS position. As for any public advocacy for particular treatment by Dr Kelly or others, that was not necessarily wrong (it was unsurprising that private providers might advocate for the service they provided); the relevant question for the CQC was not how the views of those involved in IP1 might be perceived by others but whether they were demonstrating compliance with regulation 12.