On 12 October 2017 at Basingstoke Magistrates Court District, Judge Loraine Morgan sentenced Southern Health NHS Trust in relation to a CQC prosecution for an offence under Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

This was the sixth prosecution that the CQC has brought against providers since taking on enforcement powers from the Health and Safety Executive and local authorities in April 2015. It is the first prosecution of a NHS provider.

Guilty plea

The Trust pleaded guilty to an offence of failing to provide safe care and treatment resulting in avoidable harm to one patient and putting others at serious risk of avoidable harm at the first hearing on 29 June 2017.

Facts of the case

The facts of the case related to failings at Melbury Lodge, an acute inpatient service, that led to an incident in the early hours of 3 December 2015. A detained patient, identified as AB, gained access to the roof of the facility and fell, sustaining life changing injuries.

Regulation 12 sets out a provider’s duty to ensure that care or treatment is provided in a safe way. It is a criminal offence if the failure to provide safe care or treatment results in avoidable harm to a service user or exposes a service user to a significant risk of exposure to avoidable harm.

The CQC argued that the Trust had failed in that duty, citing that between 2010 and 2014 there had been six other incidents involving other patients accessing the roof. It was asserted that the Trust had not implemented safety recommendations resulting from inspections made on April 2012, August 2014 and May 2015.

Following the incident, the CQC conducted an inspection of the unit in January 2016. The inspection raised significant concerns, including the ease of access to the low roof. The CQC issued a warning notice.

Sentencing

The Trust was fined £125,000 for failing to provide safe care and treatment and putting people at risk of avoidable harm. It was also ordered to pay the prosecution costs of £36,000 and a £170 victim surcharge.

Reductions to the sentence

On a practical note, attention should be given to the extensive reduction applied to the sentence by the Court, which although severe, was mitigated by a number of features:

  1. The Trust’s prompt guilty plea secured the maximum available one third reduction as set out here in the Sentencing Council guidance.
  2. The sentence was reduced by tangible evidence of reflection and remediation on the part of the Trust which had resolved safety and governance failings. The Court relied on a CQC report published in July 2017 which recognised significant improvements at Melbury Lodge. The Court found the CQC findings to be evidence of ‘positive change in the culture of the Trust’.
  3. The Trust was able to advance arguments regarding the proportionality of any sentence based upon financial and policy reports produced for the Court which set out the financial health of the Trust and the likely impact of a large fine on the provision of services.

What providers should do when under a CQC investigation

Providers facing prosecution are well advised to seek legal assistance at the earliest stage of a CQC criminal investigation, a process that will normally involve an interview under caution.

Strategic legal advice, deployed promptly can in some cases curtail a prosecution or mitigate its effect. Our extensive experience of regulatory, healthcare and criminal law means that we are best placed to advise providers under investigation.

Sentencing remarks

The sentencing remarks of a Senior District Judge were published here in a case of particular interest to regulated providers of healthcare.