At the High Court, Mr Justice Lavender has handed down judgment in the case of R (on the application of Med Chambers and Prime Medicals) v MedCo Registration Solutions  EWHC 3258 (Admin), where two medical reporting organisations sought relief from suspension from the MedCo portal for failing to adhere to the MedCo User Agreement. [i]
Since the Ministry of Justice ‘qualifying criteria’ was strengthened, in 2016, we have regularly reported on news involving MedCo sanctions. Most recently, we discussed, in edition 187 (here) of BC Disease News, that 23 Medical Reporting Organisations (MROs) and 14 Direct Medical Experts (DMEs) had been suspended. Only a month beforehand (here), we reported on the termination of 134 other User Agreements. Last year, we reported that MedCo were auditing MRO’s to ensure that the ‘minimum qualifying criteria’ were satisfied, so that organisations could remain within the MedCo portal.
The claimants in this case, Med Chambers and Prime Medicals, were audited in February of 2017. In June, MedCo sent out ‘decision letters’, identifying eight breaches of the ‘qualifying criteria’ by each claimant.
Under Clause 10 of the MedCo User Agreement, MRO’s are able to enter into dispute resolution (ADR) with MedCo, in order to resolve any differences, e.g. on ‘qualifying criteria’. The Clause allows, firstly, the opportunity for resolution to be performed by representatives of both parties, which can be ‘escalated’ to senior representatives. If no solution has been reached and 30 days have passed since discussions began, clause 10 permits the referral of any dispute to mediation, which is overseen by the Centre for Effective Dispute Resolution (CEDR)
Legal action cannot be taken until 30 days after the dispute resolution notice has been served. MedCo, by performing a ‘public function’, is ‘amenable to judicial review and ... is a public authority for the purposes of section 6 of the Human Rights Act 1998’. In this instance, applications for judicial reviews (JR) were filed in September 2017, ‘at the very limit of the time period specified by CPR 54.5(1)(b)’.
The MRO’s were ‘... using the escalation procedure to challenge the decision that they did not meet the qualifying criteria, and using these applications to challenge the suspension decision’.
At the judicial review hearing, in November of last year, the MRO’s disputed that the Clause 10 procedure was an ‘adequate remedy’:
- as MedCo had neglected to comply with its duty to consider submissions made within 14 days of the decision letters;
- as the ‘escalation’ process was ‘far too slow’ in taking up to 90 days; and
- as the Clause 10 procedure did not ‘provide the claimants with the remedies of interim relief or damages’.
NON-COMPLIANCE WITH CLAUSE 10
In relation to the claimants’ 1st submission, Lavender J said there was no evidence to infer that MedCo would not take its obligations seriously to engage in the ‘escalation’ procedure.
SPEED OF CLAUSE 10
In reaching a determination on the claimants’ 2nd submission, Lavender J reasoned:
‘It took the claimants 92 days to commence these proceedings. In that context, it cannot be said that a process taking 90 days is too slow’.
CLAUSE 10 REMEDIES
On the 3rd and final argument posed by the claimant, Lavender J deemed that the claimants had ‘misunderstood the nature of the procedure’, by surmising that dispute resolution could not provide adequate relief.
Lavender J said the claimants’ approach of pursuing simultaneous ADR and JR was ‘unsatisfactory’:
‘In some cases it may be necessary and appropriate for a claimant to pursue two different proceedings simultaneously, but it is generally inconvenient and undesirable’.
The judge maintained that the Clause 10 procedure allowed for negotiations which could lead to the lifting of a suspension. Thus, the challenge brought under the Clause 10 ‘escalation’ procedure for failing to meet the ‘qualifying criteria’ were not at issue in judicial review proceedings. In delaying seeking any relief in respect of the suspension, the judge admitted that ‘by September 2017 the Claimants were in a position to reapply for admission to the Portal, thereby bypassing the suspension decision if they could show that they met the qualifying criteria’.
Held, at paragraph 39:
‘All in all, I do not consider that the arguments advanced by the claimants demonstrate that the escalation procedure was not a suitable alternative remedy in the present case. On that basis, I refuse permission to apply for judicial review’.
He went on to say, at paragraph 41:
‘... if I were wrong on the issue of alternative remedy, I would have dismissed the applications for permission to apply for judicial review on the basis that they were not brought promptly’.
The judge distinguished this decision from a similar case, involving an MRO which challenged its suspension and reached a settlement. The difference in that case, was that the MRO had taken positive steps post-audit to ensure compliance with the ‘latest qualifying criteria’.
[i] Nick Hilborne, ‘High Court refuses to lift suspensions imposed by MedCo on MROs’ (10 January 2018 Litigation Futures) https://www.litigationfutures.com/news/high-court-refuses-lift-suspensions-imposed-medco-mros> accessed 11 January 2018.