Since April 2015 the CQC has had a power to bring criminal prosecutions against health and social care providers for failing to provide care and treatment in a safe way. These powers sit alongside those that exist for the Health and Safety Executive (HSE) under the Health and Safety at Work etc. Act 1974.
After a slow start, the CQC has been using its prosecution powers with increasing frequency over the last few months.
In this briefing, we look at patterns emerging from the cases which have come before the criminal courts so far, and what to expect going forward as the CQC's use of its prosecution powers gains momentum.
CQC's Prosecution Powers
Before 1 April 2015, the CQC had some limited powers to bring criminal prosecutions (e.g. for carrying on a regulated activity without being registered to do so), but these tended to be little used in practice.
The position changed from 1 April 2015. New regulations came into force which widened the CQC's powers to include the ability to prosecute providers for breaching certain of its Fundamental Standards without the need to issue a Warning Notice first. Since 1 April 2015, the CQC has therefore become the lead regulator in taking enforcement action against registered providers in the event of safety failings in the care and treatment context.
Coinciding with the introduction of these new powers, a Memorandum of Understanding was agreed between the CQC, Health & Safety Executive (HSE) and Local Authorities which - in effect - transferred enforcement responsibility for safety breaches involving registered health and social care providers from the HSE/Local Authorities to the CQC. There is however an overlap as the HSE will still continue to prosecute CQC registered providers in certain circumstances and so inevitably there is scope for confusion as to who is the appropriate enforcement authority.
Under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, it is an offence to fail to comply with the following requirements if this results in avoidable harm or exposes a service user to a significant risk of avoidable harm:
- care and treatment must be provided in a safe way (Regulation 12)
- service users must be protected from abuse and improper treatment (Regulation 13)
- service users must be provided with sufficient nutrition and hydration (Regulation 14)
It is a defence for the provider to show that it took all reasonable steps and exercised all due diligence to prevent the breach.
The first prosecution under the CQC's new powers was concluded in June 2016 - i.e. some 14 months after the new regulations came into effect - when a care home was fined by the criminal courts for failure to provide safe care and treatment resulting in avoidable harm.
This was followed by a second CQC prosecution of a care home for failure to provide safe care in September 2016.
Since then, the pace of CQC prosecutions has accelerated, with three concluded CQC prosecutions for safety failings already this year - a case each month in February, March and April 2017, plus the news in March that the CQC is pursuing its first prosecution against an NHS Trust for failure to provide safe care.
After the first prosecution last year, the CQC's Deputy Chief Inspector of Adult Social Care said: "When serious incidents occur, we now have additional powers to hold providers to account in the courts. In future if we find that a care provider has put people in its care at risk of harm, we will always consider using those powers to the full to prosecute those who are responsible."
All the signs are that the CQC is keeping to its word on this, and that numbers of CQC prosecutions will continue to grow.
Looking at the five 'safe care' CQC prosecutions that have so far come before the courts, are there any patterns which emerge?
Nature of breach - Whilst all prosecutions so far have related to breach of Regulation 12 safe care and treatment requirements, the cases have covered a wide range of safety issues, including medication errors, uncovered radiators and use of bed rails. This reflects the broad scope of the duty to provide care safely. Recurring themes have included:
- issues with documentation - e.g. in a case involving errors with anti-coagulant medication, the prosecution covered a broad range of documentation failures, including medication dosages and strengths not being accurately recorded, allergy information not being recorded and medication administration times not being recorded, plus poor systems of stock management leading to running out of essential medications.
- risk assessments - e.g. one care home was found to have no proper system for assessing the risks to the health and safety of individual service users (including failing to prevent a blind resident repeatedly falling in her room and failing to prevent a resident repeatedly choking), whilst another care home was failing to properly address risks around bed rail safety.
- equipment - e.g. in a case involving a service user with dementia suffering burns after falling against a radiator, the prosecution identified failures to apply radiator covers or pressure sensor mats to alert staff to the person getting out of bed. Another case involved failure to implement advice from a safety consultant about installing bed rail extensions.
- staff training - e.g. in a case about a service user falling out of a shower commode chair, the prosecution included a failure to bring to the attention of staff a national safety alert about the importance of safety/posture belts and to ensure that staff understood how to fit chair straps safely.
Harm - Technically, prosecutions can be brought against providers without actual harm having been suffered but where there is nevertheless a risk of harm. Based on the cases so far, actual harm seems more likely to result in a prosecution (although most of the cases have involved risk of harm to other service users as well as an incident of actual harm). In considering whether charges should be brought, the CQC - in addition to assessing the strength of the evidence in each case - will no doubt consider all of the circumstances and in particular the public interest, when determining whether a prosecution should be brought.
Warning Notices - The CQC does not need to serve a Warning Notice before prosecuting for a breach of regulations which constitute a criminal offence and, indeed, Warning Notices were not issued in all of the prosecutions brought to date. What is clear, however, is that where Warning Notices are issued and there has been a failure to implement appropriate remedial steps, there will be a much greater likelihood of a prosecution being brought.
Risks to Providers
All providers prosecuted so far have pleaded guilty, so none of the cases have gone to full trial. The lack of defence of these cases so far illustrates the significant burden placed on providers facing trials to demonstrate to the court that all reasonable steps have been taken and that all due diligence has been exercised to prevent the breach.
The penalty for offences under the CQC regulations is a fine. Importantly, however, the level of fine in the Magistrates Court is now unlimited, and the Magistrates Courts where these cases have all been sentenced have imposed some hefty fines on the providers prosecuted to date - e.g. £190,000 plus costs in one case and £150,000 plus costs in another.
This is partly because the courts have to follow the tough new sentencing guidelines for health and safety offences which were introduced from February 2016. These provide a framework for deciding on the appropriate level of financial penalty, including assessing the seriousness of the offence by looking at the defendant's degree of culpability and the level of harm/potential harm involved.
It is also worth remembering that a CQC prosecution can be brought against individual Registered Managers, as well as against the provider organisations themselves. In one of the prosecutions concluded so far, for example, the care home's former Registered Manager was fined £665.
Apart from the financial penalties involved, a CQC prosecution is likely to do considerable damage to a provider's reputation, with full details of CQC prosecutions and the outcome of court proceedings being published on the CQC's website.