Waghorn v Care Quality Commission

Under Care Standards Act 2000, “carrying on” an establishment has a broader scope than managing it. Liability is not confined to its owner, proprietor or day-to-day manager, and does not require a proprietary or other interest in the establishment. A medical practitioner who independently organises and performs an invasive listed service in premises constituting an independent hospital may be carrying on that hospital, particularly where the practitioner has sole responsibility for the patient, equipment, treatment and clinical waste. Practising privileges may avoid separate registration where properly established, but the privilege must be evidenced. The provision must be interpreted consistently with the Act’s protective regulatory purpose.

The appellant, a registered medical practitioner, was convicted by Deputy District Judge Monro at Westminster Magistrates’ Court of carrying on an independent hospital without registration, contrary to section 11(1) of the Care Standards Act 2000. He had performed liposuction under local anaesthetic in a basement room at Berkeley Clinic. The room was found to constitute an independent hospital because it provided cosmetic surgery, a listed service.

By case stated, the appellant asked whether a practitioner performing cosmetic surgery in such premises carried on the hospital, whether an interest in it was necessary, whether the expression was confined to an owner or manager, and whether the evidence supported the conviction.

1. Appeal dismissed. The appellant was properly convicted under section 11(1) of the Care Standards Act 2000.
2. Under sections 2(2), 2(3)(a)(ii) and 2(7), an establishment other than a health service hospital in which liposuction under local anaesthetic is performed is an independent hospital because cosmetic surgery is a listed service. The appellant could not reopen the factual finding that the basement room was such a hospital.
3. The expressions “carries on” and “manages” are alternatives. “Carries on” has a broader scope than “manages” and must be interpreted in context and in light of the Act’s purpose. It is not restricted to the owner, proprietor or day-to-day manager.
4. A person need not possess a proprietary, contractual or other interest in the establishment. Nor is there any requirement that only one person may carry on an establishment. A person may carry on an independent hospital during the period in which that person assumes overall responsibility for the treatment and patient welfare.
5. On the facts, the appellant organised the venue, supplied and operated his own equipment, performed the surgery alone, assumed responsibility for the standard of care and intended to manage the clinical waste. He was therefore effectively in charge of the hospital while providing treatment.
6. Practising privileges may, where properly granted by a registered provider or manager, mean that a practitioner need not register separately. The appellant produced no written agreement or other evidence of such privileges, so they afforded no defence.
7. The CQC’s decision to prosecute the appellant rather than another possible person carrying on the hospital was not an abuse of statutory power.

The appeal was brought to the High Court by way of case stated under section 111 of the Magistrates Courts Act 1980 from the conviction and sentence imposed by Westminster Magistrates’ Court on 9 June 2011. The High Court dismissed the appeal.