CQC prosecutions: a change in approach?
Bill Dunkerley

Since April 2015 the Care Quality Commission (‘CQC’) has been the enforcing authority in respect of regulated care activities and has extensive powers of enforcement, including the ability to prosecute both individuals and corporate care providers which it considers have failed to provide safe care and treatment.

Despite its wide-ranging powers, to date there have been only a handful of CQC prosecutions. However, recent comments by the Commission’s Chief Executive indicate that the organisation is conscious of the low number of prosecutions and is preparing itself to pursue more enforcement activity in the future.

Prior to 2015 health and safety investigations arising out of the operation of care and nursing homes were undertaken by the Health and Safety Executive (‘HSE’), in accordance with its statutory powers.
Genesis for change came with the publication of the Francis Report, commissioned as a result of the failings at Mid Staffordshire NHS Foundation Trust and events at Winterbourne View, where 11 people were convicted of maltreatment of patients following a Panorama expose.

The Report concluded that there was a lack of clarity as to which of the HSE, local authorities or the CQC was the responsible organisation for holding care providers to account. Outside of the Report the care industry perceived a lack of familiarity by HSE Inspectors with the intricacies of day to day care activities, the HSE having more experience of investigating and prosecuting breaches in other industries.
Flowing from the Francis Report, a Memorandum of Understanding was signed by the HSE and CQC which aimed to close the, “regulatory gap,” and clarify the scope and extent of both organisations’ responsibilities.

In accordance with the Memorandum, the HSE continues to be the relevant inspection and enforcement organisation in respect of health and safety matters involving service users with non-registered providers, as well as for matters involving workers, visitors and contractors across all providers. The CQC by contrast is the lead inspection and enforcement body for the safety and quality of treatment provided by those organisations and individuals registered with it.

CQC Powers of Investigation
The CQC’s Enforcement Policy sets out two primary purposes:

1. To protect people who use regulated services from harm and the risk of harm, and to ensure they receive health and social care services of an appropriate standard; and

2. To hold providers and individuals to account for failures in how services are provided.

To achieve these aims, and by way of ongoing monitoring of providers, the CQC undertakes routine inspections of registered providers to assess the quality and level of care being provided, following which a rating will usually be issued and corresponding report published on the CQC’s website. If any failings or breaches are identified then this may, depending on the nature and severity, result in enforcement action.

The CQC’s enforcement powers include:
• warning notices;
• civil sanctions, for example imposing conditions on a provider’s registration, or suspending registration altogether;
• criminal enforcement powers, including penalty notices and prosecutions.

The Enforcement Policy makes it clear that the CQC will only take action which it considers is proportionate to the individual case.

Despite having the ability to prosecute, to date there have been only a handful of prosecutions by the CQC. This can be contrasted with the hundreds of prosecutions initiated by the HSE during the same period. The reasons for this discrepancy are unclear, although it appears that the CQC is conscious that only a small percentage of its investigations result in prosecution.

Winds of change?
In an interview with the Health Service Journal at the tail end of 2018 Ian Trenholm, Chief Executive of the CQC, stated that he was, “keen to do more enforcement,” and that he foresaw, “the number of prosecutions increasing.” He went on to explain that the CQC has hired 11 ‘evidence review officers’ to, “help…with looking at and reviewing the quality of evidence [the CQC] are generating to make sure we can prosecute more people and do that much more effectively.”

Mr Trenholm has explained that it wouldn’t, “distress [him] overly much if we lost a few prosecutions because it would mean we are pushing the envelope.”
The indication that more providers may be prosecuted coincides with an increased willingness by courts to impose significant fines following conviction. Although there are no Sentencing Guidelines which are specific to CQC prosecutions, Guidelines do exist in respect of health and safety offences generally. Although these Guidelines do not expressly apply to convictions in CQC cases, recent experience demonstrates that courts do have regard to them when sentencing at the conclusion of CQC prosecutions.

For example:
• Hillgreen Care Limited was fined £300,000, together with costs of £141,000, in November 2018 for failing to provide an appropriate level of care and protect service users from a resident with a history of sexual assaults.

• Southern Health NHS Foundation Trust was fined £125,000 following the fall of a service user who had accessed the roof of his psychiatric unit.
These are significant fines, with any sums paid being unavailable to be re-invested by the provider in its care services.

The combined effect of the court’s ability to impose large fines, as well as the recent indications from the CQC, could cumulatively be interpreted as painting a bleak picture for registered care providers.
Although it is admirable for the CQC to wish to hold more duty holders to account how this will translate into practice, and whether it will result in more prosecutions as opposed to other forms of enforcement, remains to be seen. In increasingly austere times questions may also be asked regarding the use of public funds to pursue prosecutions which are ultimately unsuccessful.
Rather than being viewed as a worrying period however, duty holders should consider this as an opportunity to review their management systems, general compliance and any perceived weaknesses in their undertaking, so as to minimise the potential that they attract the attention of an increasingly prosecution-minded CQC.

If you have any queries or would like to discuss any of the matters raised, please contact Bill Dunkerley on 0161 393 9087

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