A regulator with clout

from Caring Times – May 2023

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In recent months we’ve received multiple reports from providers that have received communications from the CQC enforcement team informing them they are investigating potential prosecutions.

Prosecution is one of the multiple options the CQC lists in its enforcement policy and falls at the more serious end of action it can take. Prosecutions can be brought against registered providers, individual directors and/or registered managers and can result in significant fines if found guilty.

There are a number of different reasons the CQC can pursue a prosecution such as (but not limited to):

• Failure to comply with prosecutable fundamental standards

• Failing to comply with conditions of registration

• Making false or misleading statements on registration applications

• Carrying out regulated activities without the appropriate registration. The vast majority of prosecutions against registered persons have been in relation to breaches of Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. In relation to registered persons, the CQC can pursue direct prosecution under Regulations 12, 13(1) to (4) and 14 if a breach has resulted in avoidable

“Some of the offences listed attract unlimited fines through the courts. We’ve seen significant fines imposed recently, including a fine of more than £200,000 for an NHS trust for breaches of Regulation 12 related to the death of a patient who absconded for the third time from hospital.” harm to a service user, they have been exposed to a significant risk of harm, or a service user has experienced loss of money or property (in a case of theft, misuse or misappropriation of money or property) and it is considered in the public interest to do so.

It is a defence for a registered person to prove that they took all reasonable steps and exercised all due diligence to prevent the breach.

Not all of the investigations undertaken by the CQC will result in it pursuing prosecution, but providers should take any indication of an investigation very seriously.

The CQC has brought three successful prosecutions so far this year, each relating to events that occurred between 2019 and 2021 linked to breaches of Regulation 12. The CQC is eager to publish details of its successful prosecutions on its website and data it has published indicates that it’s successfully attained a guilty verdict in all relevant cases it’s pursued through the courts. It should be noted that in the vast majority of these cases the accused party has itself pleaded guilty.

Some of the offences listed above attract unlimited fines through the courts. We’ve seen significant fines imposed recently, including a fine of more than £200,000 for an NHS trust for breaches of Regulation 12 related to the death of a patient who absconded for the third time from hospital. A registered manager was also recently ordered to pay over £55,000 for failing in her duty to protect two service users from an avoidable risk of harm who both died following separate incidents at the care home.

It is recommended that providers and managers take legal advice at an early stage when facing a potential CQC prosecution. Setting the groundwork early on can help support a case in the long run. Plea considerations are not straightforward and, if found guilty, the courts consider matters of conduct throughout the course of investigations when deciding on the level of fines and important points for mitigation (which can lead to reductions in fines) could be missed without legal support.