Evans v Care Quality Commission [2025] EWCA Civ 1556: Ideological Views, Mandatory Relevant Considerations and the Regulation of Gender-Affirming Treatment for Minors

Evans v Care Quality Commission [2025] EWCA Civ 1556: Ideological Views, Mandatory Relevant Considerations and the Regulation of Gender-Affirming Treatment for Minors

1. Introduction

The decision in Evans & Anor, R (On the Application Of) v The Care Quality Commission & Ors [2025] EWCA Civ 1556 arises at the intersection of public law, healthcare regulation, and the highly contested field of gender-affirming treatment for adolescents. The Court of Appeal (Lewis LJ, sitting on an application for permission to appeal) was asked to scrutinise the Care Quality Commission’s (CQC) approach to regulating a private provider of cross-sex hormone treatment—Gender Plus Healthcare Ltd (GPH)—for 16 and 17 year olds.

The claimants (Evans and another) had unsuccessfully sought judicial review before Eady J, challenging both:

  • the CQC’s decision of 9 January 2024 to register GPH as a provider of the regulated activity of “treatment of disease, disorder or injury” (here, cross-sex hormones), and
  • the CQC’s subsequent review and assessment of GPH’s services, culminating in a highly positive (“outstanding”) report published on 4 December 2024.

On appeal, the claimants advanced three grounds, all framed as errors of law in the CQC’s decision-making process and in the High Court’s treatment of that process:

  1. that the CQC unlawfully failed to take account of, or inquire into, the allegedly strong “personal or ideological views” of GPH’s founder, Dr Kelly, about gender medicine;
  2. that the CQC failed to understand or investigate the “up-to-date NHS approach” to the provision of cross-sex hormones, particularly the structure of the national multi-disciplinary team (MDT); and
  3. that the CQC treated as matters of “form rather than substance” certain structural differences between GPH’s processes and the NHS model, which were said to represent missing safeguards.

Lewis LJ refused permission to appeal on all three grounds. In doing so, he reaffirmed and applied core principles of judicial review concerning:

  • what counts as a “mandatory” relevant consideration,
  • the limits of a public authority’s duty to make further inquiries,
  • the proper role of courts in reviewing the expert judgment of a specialist regulator, and
  • the chronological discipline of reviewing decisions only by reference to material available at the time.

In the specific context of controversial medical treatment, the judgment is especially important for its implicit ruling that regulators are not under a general public law duty to scour the media for clinicians’ ideological pronouncements, nor to treat such pronouncements as mandatory considerations, absent concrete evidence that they affect the safety or legality of clinical practice.

2. Summary of the Judgment

2.1 Procedural posture

The case came before the Court of Appeal as an application for permission to appeal against the dismissal of a judicial review claim. The High Court (Eady J) had rejected the challenge to both the CQC’s initial registration of GPH (January 2024) and its subsequent assessment report (December 2024).

Lewis LJ had previously adjourned the paper application to an oral hearing, but after full argument he refused permission to appeal, concluding that none of the grounds had a “realistic prospect of success” and that there was “no other compelling reason” for an appeal to proceed ([6], [36]).

2.2 Core holdings

The Court’s key conclusions were:

  • Ground 1 (ideological views of Dr Kelly):
    • For the January 2024 registration decision, the interviews and articles relied on by the claimants post-dated the decision; they could not be treated as relevant considerations, still less mandatory ones ([24]).
    • For the December 2024 review, the CQC’s extensive, practice-focused assessment, including observation of consultations and an interview with Dr Kelly about the Cass Review, was rational. The CQC was not bound to seek out or consider Dr Kelly’s media statements; it was not irrational to omit them, and there was no duty to conduct such inquiries ([25]).
    • The Court rejected the suggestion that the CQC had adopted a blanket view that personal views can never be relevant; their relevance depends on the factual context ([24]).
  • Ground 2 (up-to-date NHS approach and MDT structure):
    • Any alleged shift in the detailed structure of the NHS national MDT post‑March 2024 did not undermine the lawfulness of either decision ([28]).
    • The CQC’s legal task was to decide whether GPH complied with statutory regulations (e.g. safe care under regulation 12), not to replicate NHS organisational detail. It was rational to assess GPH against the 21 March 2024 NHS commissioning policy and the risks that policy sought to address ([28]).
    • The Court clarified that an April 2024 NHS letter to adult gender dysphoria clinics did not amount to a pause in cross-sex hormones for 16–17 year olds generally; it simply shifted those patients from adult clinics to the new children and young people’s service ([29]).
  • Ground 3 (differences between GPH and NHS systems):
    • For the January 2024 registration, two of the four alleged differences did not yet exist in the NHS system, so could not be relevant. The two that did exist (the nature of referrals and the links between GPH and Kelly Psychology) were known to the CQC and were taken into account ([33]).
    • For the December 2024 review, the CQC was fully aware of all four differences and used the objectives of the NHS processes as a “relevant standard” to evaluate whether GPH safely delivered the regulated activity. It was rational to conclude that GPH’s alternative arrangements sufficiently addressed the relevant risks ([34]).

Overall, the Court confirmed that the CQC had carried out a “full and proper consideration of all relevant matters” (endorsing Eady J’s findings at [117], [133] of the High Court judgment as cited at [34]). The decision neatly illustrates the high threshold for intervening with the technical assessments of a specialist regulator.

3. Legal and Factual Framework

3.1 Legislative framework

The CQC’s powers arise under the Health and Social Care Act 2008 (“the 2008 Act”) and subordinate regulations:

  • CQC’s objective: to “protect and promote the health, safety and welfare” of service users, including the particular rights of children ([7]).
  • Registration of providers:
    • Providers of “regulated activities” (which include the provision of cross-sex hormones) must be registered under s.12.
    • Under s.12(2), the CQC must grant registration if satisfied that regulatory requirements (made under s.20) and other statutory requirements “are and will continue to be complied with” ([9]).
  • Safety regulation:
    • Under s.20, regulations must be made to ensure regulated activities cause “no avoidable harm”.
    • Regulation 12(1) provides that “Care and treatment must be provided in a safe way for service users” ([8]).
  • Review and assessment:
    • Section 46 requires the CQC to conduct reviews of the carrying on of regulated activities, assess performance and publish reports ([9]).
    • In exercising these functions, the CQC applies a framework of five key questions: are services safe, effective, caring, responsive, and well-led ([37] of the High Court judgment, quoted at [12]).

Within this framework, the CQC’s decisions are essentially evaluative judgments about compliance with safety and quality regulations. Judicial review, therefore, asks whether those judgments were lawful and rational, not whether the court would have reached the same conclusion.

3.2 Cass Review and NHS commissioning policy

The dispute unfolded against a rapidly evolving policy background:

  • Cass Review: An independent review commissioned by NHS England, chaired by Dr Hilary Cass, to make recommendations on services for children and young people with gender incongruence ([13]). An interim report existed at the time of GPH’s registration; the final report (10 April 2024) included:
    • Recommendation 8: masculinising/feminising hormones may be offered from age 16, but with “extreme caution” and a clear rationale for not waiting until 18 ([16]).
    • Recommendation 9: every case should be discussed at a national MDT ([16]).
  • 21 March 2024 NHS clinical commissioning policy for Gender Affirming Hormones (GAH):
    • GAH are “available as a routine commissioning treatment option” from around age 16 for those meeting eligibility and readiness criteria ([15]).
    • Criteria include: assessment by an appropriate specialist MDT over time; MDT agreement (by a national MDT including clinicians not directly involved in the care plan); ensuring understanding of limited evidence and long-term significance of treatment; and exclusion of patients with uncontrolled severe mental health problems ([15]).
  • 9 April 2024 NHS letter to adult gender dysphoria clinics:
    • Signalled that NHS England would develop a new policy for those over 18, and—pending that—advised adult clinics to defer first appointments for under-18s until their 18th birthday, with those patients to be treated by the new children and young people’s service ([17], [29]).
    • The Court held this did not amount to an NHS-wide pause of cross-sex hormones for 16–17 year olds ([29]).

This context is crucial: although the Cass Review urged caution and the NHS introduced more structured pathways, the law did not prohibit cross-sex hormones for 16–17 year olds. Eady J had emphasised that such treatment “is permitted by law” and that the issue was the lawfulness of CQC’s decisions, not the underlying merits of providing hormones ([4]).

3.3 GPH, Kelly Psychology, and the CQC’s decisions

GPH, incorporated in May 2023, is a private provider set up by Dr Aidan Kelly, a consultant clinical psychologist. It delivers non-medical psychological services and, via referral from another entity (Kelly Psychology), provides cross-sex hormone treatment to patients aged 16 and over ([11]).

3.3.1 Registration decision – 9 January 2024

The registration assessment was led by CQC inspector Amy Robson. The team included a medicines manager, a national professional adviser, and a senior mental health specialist with experience inspecting the Tavistock Gender Identity Development Service (GIDS) ([37]).

Key features of the registration assessment ([37]–[39]) included:

  • Use of CQC’s five key questions (safe, effective, caring, responsive, well-led).
  • Specific reliance on:
    • the Cass Review interim report,
    • relevant NHS guidance, and
    • the inspection history of Tavistock GIDS, to check for concerns about Dr Kelly ([13]).
  • Full assessment of GPH’s documents, meetings with Dr Kelly and Mr Carruthers, and a fit person interview with Mr Carruthers as registered manager.
  • A detailed 59-page research and planning evidence record recommending registration.
  • A management review meeting which decided to impose a condition preventing treatment of those under 16 ([39]).
  • Senior-level oversight before registration was confirmed on 9 January 2024.

3.3.2 Subsequent NHS policy and Cass final report

After registration, the NHS policy and Cass Review developments described above took effect: the March 2024 commissioning policy and the April 2024 Cass final report ([15]–[17]).

3.3.3 CQC review and assessment – December 2024

A further CQC assessment and review, led by Ms Huntley, culminated in a report on 4 December 2024 ([19], [49]). The assessment was extensive:

  • Study of the Cass final report and the “most up-to-date” NHS commissioning policies and service specifications ([44]).
  • Direct observation of patient consultations, to see:
    • how consent and risks (including unknown risks) were explained,
    • whether fertility was addressed meaningfully, and
    • whether consultations were holistic and person-centred ([44]).
  • Observation of an MDT meeting involving an independent child psychiatrist (Dr Adams) for under-18 cases ([45], [47]).
  • Interviews with patients and families (21 in total), Dr Kelly, Mr Carruthers, an independent pharmacist, and a visiting mental health nurse; review of randomly selected patient records; and questionnaires to healthcare professionals ([45]).
  • An additional clinical interview by Dr Tim Ballard, focusing on clinical aspects, Cass Review findings, outcomes auditing, and GP liaison ([45]).
  • Analysis of whether GPH’s MDT and processes were sufficiently aligned with the NHS national MDT model and policy requirements ([47]–[48]).

The outcome was an “outstanding” rating overall, with “outstanding” in four domains and “good” (meeting expectations) for “safe” ([49]).

4. Precedents and Authorities Considered

4.1 Friends of the Earth v Secretary of State [2020] UKSC 52

Lewis LJ explicitly grounded his analysis in the Supreme Court’s judgment in R (Friends of the Earth Ltd) v Secretary of State [2020] UKSC 52; [2021] PTSR 190 ([21]). Although that case arose from very different facts (it concerned policy governing expansion of Heathrow Airport), it is now a leading authority on:

  • how to identify which matters are mandatory relevant considerations, and
  • the approach to be taken when a decision-maker is alleged to have failed to take account of such a matter.

As summarised by Lewis LJ (relying on [116]–[121] of Friends of the Earth):

  • The question of whether something is a consideration that a decision-maker must take into account depends on whether it is “so obviously material to the decision that it would be irrational, in the public law sense, not to take it into account” ([21]).
  • Once a factor is deemed mandatory, the decision-maker must consider it; but the weight given to it is a matter for the decision-maker’s judgment, subject only to rationality review.

This principle underpins the Court’s approach throughout Evans, providing the legal framework for all three grounds of appeal.

4.2 Keep Chiswell Green v Secretary of State [2025] EWCA Civ 958

Lewis LJ also cited the Court of Appeal’s own recent decision in Keep Chiswell Green v Secretary of State for the Home Department [2025] EWCA Civ 958 at [82], as an application of the Friends of the Earth test ([21]). While the details of that case are not reproduced in this judgment, its citation underscores that the “so obviously material” threshold is now firmly embedded in the Court of Appeal’s approach to challenges framed around alleged failures to consider relevant matters.

4.3 AB v CD [2021] EWHC 741

The claimants relied on the High Court’s judgment in AB v CD [2021] EWHC 741 (Fam), particularly paragraphs 123–124, to argue that strong personal views on gender identity treatment could affect the safety of clinical decision-making and therefore should have been treated as a mandatory relevant consideration ([23]).

In AB v CD, the court was concerned with parental consent to puberty blockers and highlighted the need for clinicians to guard against fixed ideological positions that could distort clinical judgment. The claimants sought to transpose that reasoning into the regulatory context, arguing that CQC was required, as a matter of law, to identify and investigate Dr Kelly’s publicly expressed views.

Lewis LJ did not reject AB v CD as wrong or irrelevant. Instead, he accepted that strong personal views can be relevant to safety but held that this does not automatically render all public statements by clinicians a mandatory consideration in regulatory decision-making. Their relevance is fact-sensitive and mediated by the public law test of “obvious materiality” to the particular decision under review.

4.4 The Cass Review

The Cass Review, although not a judicial authority, functioned as a key evidential and policy backdrop. Both the CQC and the courts treated:

  • the interim Cass report as important context for the registration decision, and
  • the final Cass report as central to the 2024 assessment, particularly its emphasis on:
    • caution in prescribing hormones from 16, and
    • the need for national MDT oversight.

Crucially, the Cass recommendations remained non-binding. They informed NHS policy, and were considered by the CQC, but they did not themselves change the legal baseline: cross-sex hormones for 16–17 year olds remained lawful, and CQC’s statutory yardstick continued to be compliance with regulations under s.20, notably safe care under regulation 12 ([8], [28]).

5. Analysis of the Court’s Reasoning

5.1 The governing test: mandatory relevant considerations and duty to inquire

Lewis LJ framed the central question as whether certain matters (e.g. Dr Kelly’s views, precise NHS MDT arrangements, structural differences between GPH and NHS) were considerations that the CQC was legally obliged to take into account for its decisions to be lawful ([21]).

From Friends of the Earth and Keep Chiswell Green, the applicable principle is that a factor is “mandatory” only if it is so obviously material that irrationality would arise from ignoring it. Failure to take such a factor into account makes the decision unlawful; but where a factor is merely a permissible consideration, the decision-maker may lawfully give it little or no weight—or even choose not to consider it explicitly—provided that approach is rational.

The related concept is the duty to inquire: when, if ever, must a decision-maker go out and seek further information? That duty is again shaped by rationality; it is not open-ended. The authority need only make such inquiries as are reasonable in the circumstances if it is to reach a rational and adequately informed decision.

Lewis LJ applied these concepts rigorously, always against the background that:

  • the CQC is a specialist expert regulator, and
  • the courts are not conducting a merits appeal but reviewing for legality and rationality.

5.2 Ground 1 – Ideological views of Dr Kelly

Ground 1 alleged that the CQC ought to have treated Dr Kelly’s “strong personal or ideological views” as a mandatory relevant consideration and, in any event, should have inquired into them by locating his media statements about gender medicine ([22]–[23]).

5.2.1 Registration decision (9 January 2024)

For the January 2024 registration, the claimants relied on:

  • interviews Dr Kelly gave to a newspaper and magazine on 10 and 11 April 2024;
  • a July 2024 article criticising the Government’s ban on puberty blockers; and
  • a letter from Dr Kelly to a newspaper in April 2025 ([20], [22]).

The Court’s response was straightforward: these materials did not exist at the time of the registration decision. The CQC cannot be criticised for not considering comments “that had not been made at the time of the decision” ([24]). Nor was there any suggestion that Dr Kelly’s prior conduct at Tavistock GIDS had raised concerns; indeed, the CQC had checked his inspection history and met with him during the registration process ([12]–[13], [24]).

On this basis, there was no failure to consider a mandatory relevant consideration, and no unreasonable failure to inquire: the information simply was not there to be found.

5.2.2 Assessment decision (December 2024)

For the December 2024 assessment, the relevant media materials did exist. The question was whether the CQC was separately obliged to identify and assess them.

Lewis LJ emphasised the breadth and depth of the CQC’s assessment ([25]):

  • direct observation of patient consultations and MDT meetings;
  • interviews and questionnaires with patients, families, clinicians, and other stakeholders;
  • review of patient records and liaison with pharmacists and mental health support;
  • a clinical interview with Dr Kelly and the registered manager focusing on clinical practice, including the Cass Review.

Within this context, he held:

  • It was not irrational for the CQC not to take account of newspaper interviews and articles, particularly as “those interviews were not drawn to the Commission’s attention” ([25]).
  • There was “no basis for saying that the inquiries made by the Commission were irrational in not seeking to obtain and consider copies of views that Dr Kelly was said to have expressed in the popular press” ([25]).
  • The CQC properly focused on the delivery of the regulated activity and the clinical processes in place, not on scouring the media for potential ideological statements.

Significantly, Lewis LJ also rejected any reading of the CQC’s evidence that suggested a blanket rule that personal views are never relevant:

  • He held that Ms Rawlings’s evidence did not say that “the views of individuals could never be legally relevant” ([24]).
  • Rather, her evidence simply described the CQC’s role and how concerns about individuals could affect registration or assessment in appropriate cases.

Thus, while personal or ideological views may be relevant in principle (especially where they affect practice), they are not automatically mandatory considerations requiring proactive investigative steps by the CQC.

5.2.3 Role of AB v CD and the Cass Review

The claimants relied heavily on:

  • AB v CD, which recognised the risks posed by clinicians holding strong, potentially fixed ideological positions; and
  • passages in the Cass Review emphasising the need for balanced, cautious clinical decision-making ([23]).

Lewis LJ accepted that these sources highlight a type of risk—ideologically-driven decision-making—but he did not accept that they mandated any particular investigative approach in this case:

  • The Cass Review and AB v CD inform what might be sensible for regulators to consider, but they do not convert all manifestations of strong views into mandatory public law considerations.
  • The CQC’s actual approach—intensive scrutiny of real-life practice, MDT processes, consent procedures, and alignment with NHS policy—was a rational way to address the risks highlighted in Cass and AB v CD.

The Court thus drew a clear line between:

  • recognising a potential risk of ideological bias (as Cass and AB v CD do), and
  • imposing a legal duty on the CQC to trawl public statements or to treat such statements as determinative.

5.2.4 Commentary on Ground 1

Ground 1 is where the judgment most clearly develops the law in a novel context. The implicit principle that emerges is:

The personal or ideological views of clinicians, even when publicly expressed in the media on controversial treatments, are not in themselves a mandatory relevant consideration for a healthcare regulator, absent evidence that those views have translated into unsafe clinical practice or non-compliance with statutory standards.

This has several consequences:

  • No general duty to scan public statements: The CQC is not bound to monitor social or traditional media for clinicians’ pronouncements.
  • Emphasis on practice over rhetoric: What matters legally is how the service is actually delivered—its structures, safeguards, processes, and outcomes—not the clinician’s public advocacy.
  • Context-sensitive relevance: If there were evidence that a provider’s ideology directly undermined consent, risk communication, MDT deliberation, or adherence to guidance, those facts could become mandatory considerations. But nothing in the material before the CQC or the courts suggested such a link here.

In short, Evans does not deny the reality or importance of ideological risk in gender medicine (acknowledged in Cass and AB v CD). It instead delineates the limits of public law review: courts will not require regulators to police ideology through media monitoring unless clinical effects are demonstrable.

5.3 Ground 2 – Up-to-date NHS practice and MDT arrangements

5.3.1 The alleged misunderstanding

Ground 2 focused on an alleged misunderstanding by GPH and, derivatively, by the CQC, about how the NHS national MDT for young people’s gender services was structured.

Shortly before the judicial review hearing, a letter indicated that:

  • there were three regional gender services in England that could refer to the national MDT; and
  • these services were separate from the endocrinology services that would administer treatment if approved by the MDT ([27]).

Mr Cross KC argued that:

  • the CQC assumed, wrongly, that endocrinologists providing hormones within NHS Trusts were part of the national MDT;
  • the NHS model thus involved greater independence and separation of functions than the CQC understood; and
  • the CQC ought to have investigated and aligned GPH’s arrangements with this updated NHS practice.

5.3.2 Court’s treatment of the factual dispute

Lewis LJ noted that:

  • these developments occurred after the January 2024 registration, so they could not affect that decision ([28]).
  • for the December 2024 review, Eady J had held that she did not need to resolve the factual dispute over precisely how the NHS MDT was run in practice ([28]).

He endorsed that approach. The critical question was whether GPH complied with the statutory regulations, especially the safety requirements, not whether its organisational structure exactly mirrored the NHS:

  • The CQC had assessed GPH’s processes against the 21 March 2024 NHS policy and the risks that policy was designed to mitigate ([28]).
  • It was rational for the CQC to be satisfied on that basis without launching further investigations into detailed operational arrangements across multiple NHS trusts.

5.3.3 No duty to investigate further NHS organisational details

Lewis LJ held that there was:

  • “no arguable basis for saying that it was irrational for the Commission in December 2024 not to carry out further investigations into the way in which NHS trusts and multi-disciplinary teams were being operated” ([28]); and
  • “no arguable basis for saying that the failure to do so led to the December 2024 assessment review being flawed” ([28]).

Implicitly, this reaffirms two propositions:

  • Regulators may use national policy as a benchmark: It is lawful and rational for the CQC to treat the March 2024 national policy—and the risks it targets—as the primary external standard, rather than to chase every detail of current local NHS practice.
  • The duty to inquire is bounded: Unless there is evidence that GPH’s compliance with statutory regulations is in doubt, the CQC is not required to conduct extensive comparative investigations into how the NHS structures its MDTs internally.

5.3.4 The 9 April 2024 NHS letter to adult clinics

Lewis LJ also addressed a concern he himself had initially shared: whether the 9 April 2024 letter to adult gender dysphoria clinics indicated that NHS England had effectively paused cross-sex hormone treatment for 16–17 year olds ([29]).

After analysis and with agreement from all parties, he concluded:

  • The letter was directed only to adult clinics, some of which had been treating 17-year-olds.
  • The effect was to shift those under-18s into the new children and young people’s service; it was not a general pause on treatment for 16–17 year olds ([29]).

This clarification is significant because, had there been a general NHS pause, a stronger argument might have arisen that:

  • the CQC should have considered whether continuing private provision was consistent with emerging national risk assessments, and
  • the updated NHS position could amount to a mandatory relevant consideration.

But on the facts as clarified, no such legal duty arose.

5.4 Ground 3 – Structural differences between GPH and NHS systems

5.4.1 The four differences advanced

Ground 3 alleged that the High Court erred in treating four divergences between GPH’s processes and the NHS model as matters of form rather than substance ([30]–[32]). The four were:

  1. Source of referrals:
    • GPH only accepted referrals from Kelly Psychology, an entity not itself regulated by the CQC.
    • In contrast, NHS referrals would originate from CQC-regulated NHS providers.
  2. Prior medical examination:
    • Patients could be referred from Kelly Psychology to GPH without having been seen by a medical practitioner.
    • From 1 September 2024, NHS policy required that patients have been seen by such a practitioner before referral.
  3. Organisational intertwinement:
    • GPH and Kelly Psychology were both founded and operated by Dr Kelly, creating close institutional and personal links.
  4. Differences in MDT composition and structure:
    • GPH’s MDT could not precisely replicate the national MDT envisaged in the NHS children’s service.

Mr Cross argued that each of these differences was a mandatory relevant consideration because they engaged safety risks that the NHS structures were designed to manage ([31]). The CQC, he said, was required to show how GPH’s alternative structures achieved equivalent protection.

5.4.2 Temporal limits: what mattered when

Lewis LJ first applied a basic yet crucial JR discipline: a decision can only be judged by reference to what existed at the time.

  • For the 9 January 2024 registration, differences (2) (prior medical examination) and (4) (the detailed structure of the new MDT) only arose after that date, in or after September 2024. The registration decision could not be flawed for failing to consider matters “not then in existence” ([33]).
  • The other two differences (referral by an unregulated entity and links between GPH and Kelly Psychology) were known to the CQC during registration, and there was “no failure to have regard to these considerations” ([33]).

For the December 2024 assessment, all four differences were in play. Here the Court accepted Eady J’s finding that the CQC was “well aware” of them ([34]).

5.4.3 CQC’s focus on objectives rather than form

The Court endorsed the High Court’s conclusions that:

  • The CQC had explicitly considered the differences in structure between GPH and the NHS children’s service.
  • The regulator rightly focused on whether GPH “was being provided in an appropriate manner” and “complying with the regulations made under section 20” ([34]).
  • Because GPH could not “replicate precisely the NHS process,” the CQC instead considered “the objectives that the NHS process was seeking to achieve and used that as the relevant standard to assess the service provided by GPH” ([34]).

On that basis, Eady J had found that the CQC had carried out a “full and proper consideration of all relevant matters” ([34]). Lewis LJ agreed that this meant:

  • the differences had been sufficiently “grappled with”; and
  • there was no rationality error in accepting GPH’s alternative safeguards and structures.

In public law terms, the Court declined to elevate the NHS model to a rigid, legally binding template. The NHS pathway is a comparative benchmark, not a statutory code. What matters is whether a provider’s approach achieves the substantive aims of that pathway—primarily, safe and well-governed care.

5.4.4 Deference to a specialist regulator

Ground 3 also illustrates the broader theme of deference to specialised judgment. The CQC had:

  • undertaken detailed, multi-source assessment of GPH;
  • measured its practice against NHS policy and Cass recommendations; and
  • concluded that GPH sufficiently addressed the safety risks, even though its organisational form differed from the NHS.

The Court saw no basis on which a judge could, consistent with the limits of JR, substitute a different view of how organisational safeguards ought to be structured.

In practice, this confirms that:

  • So long as the CQC recognises and evaluates the relevant safety risks and can rationally explain how a provider’s arrangements address them, a judicial challenge will be hard to sustain.
  • Divergence from NHS form is not, without more, a ground of unlawfulness.

5.5 Chronology and the prohibition on hindsight

Across Grounds 1 and 3, Lewis LJ repeatedly emphasised that:

  • a decision cannot be unlawful for failing to consider documents, comments, or policy changes that did not exist at the time; and
  • judicial review must respect the temporal horizon within which the decision was taken.

This is obvious in theory but is frequently overlooked in practice, especially in fast-moving policy areas such as gender medicine, where new reviews (Cass), commissioning policies, and public controversies are emerging constantly.

Evans is therefore a reminder that:

  • registration decisions (January 2024) are assessed in light of the interim Cass report and the then-current NHS guidance, not the later final Cass report or subsequent policy refinements;
  • assessment decisions (December 2024) are judged by reference to the information reasonably available then, not later publications (such as Dr Kelly’s 2025 letter).

This chronological discipline significantly narrows the scope for arguing that the regulator “ought to have” considered later-emerging evidence.

6. Simplifying Key Public Law Concepts

6.1 Judicial review vs appeal

Judicial review is not a re-hearing of the case or a chance to re-argue the merits of the original decision. The court’s role is limited to examining whether:

  • the right legal tests were applied,
  • the decision-maker acted within its powers,
  • procedural fairness was observed, and
  • the decision is not irrational (in the public law sense).

An appeal asks: “Was the decision right?” Judicial review asks: “Was the decision lawful?” In Evans, the Court of Appeal was itself at one remove: it was only determining whether there was a realistic prospect that the High Court had erred in its limited review of the CQC’s decisions.

6.2 Irrationality (Wednesbury unreasonableness)

“Irrationality” in public law (often called “Wednesbury unreasonableness”) is a stringent standard. A decision is irrational if it is so unreasonable that no reasonable public authority could have made it.

In this case, the claimants had to show more than that another regulator might have chosen to treat Dr Kelly’s media statements, or the structural differences, more cautiously. They had to show that it was legally unreasonable not to do so. Lewis LJ held they fell well short of that threshold.

6.3 Mandatory vs permitted considerations

Decision-makers often have a wide range of factors they may consider. Some are legally mandatory: the authority has to consider them, or the decision is unlawful.

Whether a factor is mandatory depends (per Friends of the Earth) on whether it is “so obviously material” that ignoring it would be irrational. In Evans:

  • The claimants argued that Dr Kelly’s ideological views and specific NHS organisational details were mandatory considerations.
  • The Court held that they were, at most, permissible considerations; it was lawful for the CQC not to address them explicitly or to give them limited weight.

6.4 Duty of inquiry

Public bodies must sometimes make further investigations to discharge their functions lawfully. But the duty to inquire is not absolute; it is shaped by what is reasonable to investigate in the circumstances.

In this case:

  • The CQC made extensive inquiries into GPH’s actual practice.
  • It was not required to:
    • search newspapers for interviews with Dr Kelly, or
    • conduct a detailed audit of NHS MDT operational structures beyond national policy and guidance.

6.5 “Broad alignment” with guidance vs legal compliance

A recurring theme is the distinction between:

  • binding legal requirements (e.g. regulation 12’s requirement of safe care), and
  • non-binding guidance and policy (e.g. Cass Review recommendations, NHS commissioning policies).

The CQC used NHS policy as a benchmark and asked whether GPH was “broadly aligned” with that policy ([38], [47]–[48]). That does not mean exact replication of NHS structures. Rather, the CQC looked to:

  • whether GPH had processes (MDT, psychological assessments, consent safeguards, involvement of consultants) that met the same underlying safety objectives as the NHS pathway.

As long as those statutory objectives are achieved, divergence in form is permissible.

7. Implications and Wider Impact

7.1 For the CQC and healthcare regulation

For the CQC, Evans is an endorsement of its existing regulatory approach in a politically sensitive area. Key implications include:

  • Validation of evidence-based, practice-focused inspections: Direct observation of consultations, MDT meetings, and patient records, coupled with multi-professional assessment and reference to national guidance, is confirmed as an adequate evidential foundation for regulatory judgments.
  • Scope to use NHS models as benchmarks, not blueprints: The CQC is entitled to measure private providers against NHS policy and Cass-based recommendations, without insisting on carbon-copy structures.
  • Boundaries of monitoring: The CQC is not under an open-ended duty to track clinicians’ public commentary. Its primary focus remains the safety and quality of care delivered.

7.2 For private providers of gender-affirming care

For providers like GPH, the decision conveys both reassurance and warning:

  • Reassurance:
    • They will not be judged unlawful simply because they are private, or because they differ institutionally from the NHS, or because their clinicians hold strong views, provided that:
      • their practice is safe and well-governed, and
      • they are broadly aligned with NHS guidance and meet regulatory standards.
  • Warning:
    • CQC scrutiny of practice will be meticulous, especially in contentious areas.
    • If there were evidence that ideological commitments distorted clinical assessment, consent, or risk management, those facts could become critical in future regulatory or judicial proceedings.

7.3 For campaigners and strategic litigators

For those seeking to challenge the availability of gender-affirming treatment for adolescents through public law avenues, Evans signals:

  • High threshold for JR of specialist regulators: Courts are reluctant to second-guess regulators’ evaluative judgments in technical fields, especially where decisions follow detailed, multi-source assessment.
  • Limited leverage from Cass and AB v CD: While these sources highlight risks and urge caution, they do not automatically render all related issues (e.g. clinicians’ ideological statements) mandatory considerations for regulators.
  • Chronological constraints: It will be difficult to use later-emerging evidence or policy shifts to challenge earlier decisions unless a fresh decision is taken without regard to the changed circumstances.

7.4 For the status of the Cass Review and NHS policies

The judgment illustrates the legal positioning of the Cass Review and NHS policies:

  • They are highly influential background material, shaping both NHS practice and CQC assessments.
  • But they remain non-binding in public law terms unless and until their contents are codified in binding regulations or statutory duties.

CQC’s obligation is to ensure compliance with health and social care regulations; reference to Cass and NHS policy is a rational route to that end, but they do not create an independent legal standard enforceable in JR.

7.5 Potential future litigation

Future challenges may arise if:

  • Parliament or the Secretary of State enacts new statutory restrictions or conditions on gender-affirming treatment for minors.
  • NHS England significantly revises its commissioning policies in response to Cass, and questions emerge as to whether the CQC must mirror those shifts in its regulatory stance on private providers.

However, Evans suggests that courts will continue to insist on:

  • clear statutory or regulatory hooks for any asserted mandatory consideration, and
  • strong evidence of irrationality or failure of inquiry, especially where a specialist regulator has engaged in detailed factual assessment.

8. Conclusion

Evans v Care Quality Commission [2025] EWCA Civ 1556 is not a full appeal judgment but a permission decision. Even so, it provides an important and structured reaffirmation of core public law principles applied to a fraught area of medical practice.

The Court:

  • reaffirmed the “so obviously material” test for mandatory relevant considerations and underscored the limited scope of the duty to inquire, drawing on Friends of the Earth and Keep Chiswell Green;
  • clarified that:
    • clinicians’ public ideological statements about controversial treatments are not automatically mandatory considerations for regulators, and
    • regulators are not obliged to scour the media for such material in the absence of evidence that it impacts clinical practice;
  • confirmed that private providers need not replicate NHS structures exactly; rational regulatory assessment can focus on whether they achieve the same safety objectives, particularly as articulated in national policies and expert reviews;
  • emphasised the chronological integrity of judicial review: decisions are judged by reference to information available at the time, not with the benefit of hindsight.

In the broader legal landscape, Evans marks a significant precedent on how courts will approach challenges to the regulation of gender-affirming treatment for minors. It balances recognition of the sensitivity and complexity of the field (as reflected in Cass and AB v CD) with a firm insistence on the proper limits of judicial intervention in expert regulatory decision-making.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Civil Division)

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