Judicial Summary — Judge Lewis

Factual and Procedural Background

This opinion concerns an application for permission to appeal against a decision of Judge Eady dismissing a claim for judicial review of two decisions made by the Care Quality Commission (referred to in this summary as "The Commission"). The first decision, dated 9 January 2024, was to register Company A (a private provider) under section 12 of the Health and Social Care Act 2008 to carry on a regulated activity described as the treatment of disease, disorder or injury — here, the prescription of cross-sex (masculinising or feminising) hormones to persons aged 16 and 17. The second decision, dated 3 December 2024, was a review under section 46 of the same Act of the carrying on of that regulated activity by Company A. Permission to bring judicial review in relation to the second decision and related matters had been granted by the judge below. Judge Lewis heard an application for permission to appeal and refused permission on all grounds, concluding that none had a realistic prospect of success.

The registration assessment was conducted by a registration inspector who led a multi-member team, produced an evidence record in December 2023, and resulted in registration being confirmed on 9 January 2024 (with a condition preventing treatment for those under 16). A subsequent review of Company A's regulated activity was conducted later in 2024 by a lead assessor and team, involving observation of consultations, interviews, MDT attendance, questionnaires and record review; the assessment report was published on 4 December 2024 and rated the service "outstanding" overall.

Legal Issues Presented

1. Whether the decision-maker (The Commission) was obliged, as a legally relevant consideration, to take into account (or to make reasonable inquiries about) the founder/owner of Company A's publicly expressed personal or ideological views about gender-related treatments, and whether failure to do so made the registration or the later assessment unlawful or irrational.
2. Whether The Commission misunderstood or failed to take account of the up-to-date NHS approach (including changes post‑March 2024) when making its assessment decision, or should have made further inquiries about the operation of NHS multi-disciplinary teams such that its December 2024 assessment was irrational.
3. Whether differences between Company A's processes and the NHS processes (four specific differences identified by the appellants) were substantive safety-related matters that The Commission was required to recognise and address, rather than matters of form.

Arguments of the Parties

Appellants' Arguments

• The founder/owner of Company A had expressed strong personal views supportive of provision of cross-sex hormones to young people and critical of the Cass Review; those views were material to safety of clinical decision-making and thus a legally relevant consideration that The Commission had to take into account (or make inquiries about) when deciding on registration and in the later assessment. Failure to do so rendered the decisions unlawful or irrational.
• The Commission had not properly understood or taken account of the up-to-date NHS practice in which national multi-disciplinary team (MDT) arrangements may involve members drawn from different providers and the MDT chair not being employed by a referring hospital; the Commission should have inquired further into contemporary NHS practice and erred in not doing so.
• Four identified differences between Company A and the NHS (referral sources being unregulated; referrals without prior medical practitioner assessment; operational links between Company A and the referrer; and differences in MDT composition) were not merely formal differences but substantive safeguards embedded in NHS processes; The Commission needed to show by its reasoning that those differences did not give rise to safety risks.

Respondent's Arguments (The Commission)

• The registration decision (9 January 2024) could not be criticised for failing to consider public statements made after that date; The Commission had met Company A representatives and reviewed relevant records during the registration assessment.
• The later assessment (December 2024) involved direct observation, interviews (including with Company A's founder/owner), MDT attendance, questionnaires and case reviews; the assessment considered the Cass Review and the NHS commissioning policy and concluded Company A's processes were sufficiently aligned with the NHS policy safeguards.
• The Commission was aware of the four differences relied on by the appellants and had explicitly considered them; it examined whether Company A's alternative structures achieved the objectives of NHS safeguards and concluded they did, so its decision was not irrational.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Lewis examined each ground of appeal against the factual record and the legal standard for review (including the irrationality test explained in the Supreme Court authority cited). The court's reasoning can be summarised as follows:

1. Ground 1 (founder/owner's views): The court distinguished timing and materiality. For the registration decision (9 January 2024), the statements relied upon by the appellants occurred after that decision and thus could not render that earlier decision unlawful. The registration process had involved meetings with Company A's representatives and review of records; there was no obligation to make inquiries about public comments that did not yet exist. For the December 2024 assessment, the assessment team had interviewed the founder/owner and considered the Cass Review; the investigation involved direct observation of consultations and review of records. There was no basis to say it was irrational not to source media interviews that had not been drawn to the Commission's attention, and some of the material relied on by the appellants post‑dated the assessment. Overall, the court concluded there was no flaw in the decision‑making process on this ground.
2. Ground 2 (NHS approach and MDT structure): The court accepted that there was a factual dispute about aspects of contemporary NHS practice (for example, how MDTs were constituted and who chaired them) but held that the central legal question for The Commission was whether Company A demonstrated compliance with regulatory requirements and whether its processes addressed the risks that NHS processes sought to mitigate. The Commission had considered the 21 March 2024 NHS policy and taken into account the risks; there was no arguable basis for saying it was irrational in December 2024 not to make further inquiries about NHS operational arrangements. The April 9, 2024 advice to adult clinics did not amount to a pause in treatment for 16–17 year olds and did not undermine the Commission's process.
3. Ground 3 (differences between Company A and NHS processes): The court set out the four differences identified by the appellants (unregulated referrers; referrals without prior medical practitioner assessment prior to a specified later date; operational interlinking between Company A and its referrer; and differences in MDT composition). Two of these post‑dated the registration decision, so they could not render that decision flawed. The Commission had been aware of and considered all four matters during its December 2024 assessment; it evaluated whether Company A's alternative arrangements achieved the objectives of NHS safeguards. The judge below had found a "full and proper consideration" of relevant matters and the appellate judge agreed there was no arguable irrationality.

On each point Judge Lewis applied the established public law standard that a consideration is legally required only if it is so obviously material that a failure to take it into account would be irrational; where a decision‑maker has considered the relevant matters and reached a conclusion within the range of reasonable responses, judicial review will not succeed.

Holding and Implications

PERMISSION REFUSED

Holding: Permission to appeal was refused in respect of each of the three grounds because none had a realistic prospect of success and there were no other compelling reasons to allow an appeal.

Implications: The direct consequence is that the applicant(s) will not be permitted to pursue an appeal on these grounds. The court did not identify any error of law or irrationality in The Commission's registration decision of 9 January 2024 or its assessment decision of December 2024 based on the matters argued. The opinion does not purport to establish a new legal precedent beyond the application of established tests for materiality and irrationality in judicial review; the decision affirms that timing, the scope of inquiries reasonably required, and whether alternative procedural arrangements achieve the objectives of statutory safeguards are decisive factors in assessing rationality of regulatory decisions.