• Emails reveal digital primary care company’s effort to stop publication of a CQC report
  • Babylon threatened to sue the regulator for damages
  • CQC rejects company’s suggestion of an “appearance of bias” among managers

Babylon Healthcare threatened to sue the Care Quality Commission for damages and suggested one of its chief inspectors could appear biased amid attempts to block a critical inspection report.

A trove of correspondence, released by the Care Quality Commission to HSJ under the Freedom of Information Act, reveals the extent of Babylon Healthcare’s effort to block or amend a draft report that found its private digital primary care service was “not safe” in some areas.

An amended report, which still raised safety concerns, was eventually published in December last year, after the High Court declined to grant Babylon’s application for a continuation of an injunction that the company had successfully obtained in an earlier hearing.

Babylon subsequently withdrew its legal challenge and CQC was awarded costs.

As well as its private video-GP consultation service, the London-based company also helps deliver several NHS service, including the controversial but popular GP at Hand digital GP practice.

The report did not cover any of Babylon’s NHS services.

In correspondence in August 2017 prior to Babylon obtaining the injunction, following the circulation of the draft report, a lawyer acting on behalf of Babylon told CQC that publication of the “inaccurate and misleading” report would do “irretrievable commercial and reputational damage” to the company.

“Although it would by no means be an adequate remedy, our client would seek to recover any losses suffered by it from CQC (which are likely to be substantial),” the email said.

In a separate complaint to CQC, a lawyer for the company also raised “concerns” about “connections between members of the CQC healthcare inspection team and competitors” of Babylon. 

Specifically it raised concerns about Professor Steve Field, chief inspector of primary care, and his honorary partner role at the GP Modality Partnership and a separate role as a paid adviser for the Wesleyan Assurance Society. 

Babylon said both organisations were either developing digital capabilities, or had ambitions to do so, making them potential competitors.

The company also raised concerns about an inspector who led the Babylon inspection, noting that he had advised a community interest company that provides telehealth services.

The complaint stated: “Our…concern is not one of actual bias, but rather the appearance of bias…which would cause a reasonable, fair minded and informed observer to conclude that there was a real possibility of bias.”

CQC did not uphold Babylon’s complaints which were received prior to the injunction, defended the thoroughness and qualifications of its inspectors and made only a few minor changes to its final report in response to factual challenges.

Responding specifically to concerns about the appearance of bias, CQC told Babylon that both Professor Field, who was not directly involved in digital inspections, and the lead inspector had followed the correct procedure in declaring interests.

Other concerns Babylon raised with the CQC in the lead-up to the report include:

  • Concern that CQC’s approach to digital providers could have a “chilling effect on British competitiveness in innovation that has the potential to transform primary care access and costs in our country and internationally”.
  • A lack of clear guidelines in its approach to inspecting digital providers
  • Concern that CQC inspectors had not carried out their inspection in an “open-minded manner” and appeared to “fundamentally misunderstood the best practice guidance and legislation against which they were expected to assess”.
  • Questioned whether inspectors were properly qualified to assess a digital service. Babylon told CQC that: “Our client is concerned that the recent inspection was not carried out safely or fairly by a properly constituted inspection team.”
  • That the CQC draft report was full of factual errors

In a statement provided to HSJ, Professor Field said the CQC was confident in its approach to assessing digital providers and professionalism of its inspectors.

He said: “Patient safety cannot be compromised and people receiving care online deserve the same standards of quality as they would see in more traditional GP settings. We are extremely pleased to be working with the sector through our provider forum to tackle any challenges around this together while promoting innovation that has patient safety at the heart of its development.”

A CQC spokesman said Babylon had not filed any legal claim seeking damages, as per the correspondence.

A Babylon spokesman said: “Babylon was inspected by CQC last year and the final report is in the public domain. Any requirements for improvement have been acted upon.”

”Despite the court giving permission for a judicial review to proceed, Babylon chose not to pursue any further action in the spirit of moving forward and working collaboratively with CQC.”

”Babylon is at the forefront of technological discovery, and much of the frontier we are exploring is unchartered territory for both us and regulators alike. Babylon and CQC continue to work closely and constructively to navigate the right course, that on one hand safeguards patients, and on the other, keeps Britain at the forefront of regulatory openness to the advances of new technologies. This is no easy task, it requires a mature approach and no sensationalism. We need to all work together to make it happen.”