It has been well publicised that the CQC has seen approximately a 75% increase in enforcement action in 2017, according to its 2016/17 annual report. This is a significant increase.
Where a breach of the Health and Social Care Act is a criminal offence, the CQC is the prosecution authority for both the NHS and the private sector. A recent case in the NHS has provided guidance on how the Court will look at sentencing.
An NHS Trust was fined £333,333 in a prosecution in relation to inpatient falls (in that case the prosecutor was the HSE). The case concerned a prosecution for a failure by the Trust to ensure, so far as reasonably practical, in five instances that inpatients were not exposed to the risk of falls. In each case the patient had died shortly after a fall. In four of the cases the fall was of significance to the death.
Various failings were said to amount to a health and safety breach including failing to:
- Risk assess
- Provide one-to-one care
- Utilise correct beds and on floor mattresses
- Use bed rails
- Adequately hand over care
The Trust faced an unlimited fine, but in reaching a decision on the amount payable the Judge applied the new Sentencing Council Guidelines including considering the risk of harm, aggravating and mitigating factors and the financial consequences. As a public body, the Trust received a 50% discount on the fine and a 33% discount for an early guilty plea.