Katherine Wackett, senior associate at law firm Mills & Reeve, reports on the case of a care home manager prosecuted for failing to protect a vulnerable resident from sexual assault.

In last month’s article, we noted the rise in Care Quality Commission prosecutions, in particular for breach of Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

While we often see prosecutions against registered providers, usually companies, a care home manager in Warwickshire has recently been successfully prosecuted by the CQC for breach of Regulation 12 and Regulation 13. The manager was fined £1,600 and ordered to pay more than £8,000 to the CQC for its costs in bringing the prosecution.

This case concerned a female resident of the home who had Alzheimer’s disease. She therefore lacked capacity to consent to sexual relations. A male resident of the same home was found in her bedroom leaning over and kissing her, with his trousers down. Staff witnessed this and told the registered manager, suggesting that the male resident be moved to another room. The registered manager told the staff action would be taken but did not give the staff any advice or guidance on how to manage the resident or the risk he posed. Importantly, the registered manager also did not take any action – she did not follow the safeguarding policy, nor did she make any referrals, such as a safeguarding referral to the local authority or a referral to the police.

Less than two weeks after this incident, a member of staff found the same male resident on top of the same female resident, engaging in sexual activity. At this time, the police were called and the male resident was arrested, although no further action was taken by the police.

The CQC investigated this incident and found that there had been a breach of:

• Regulation 12 – there had been a failure to provide safe care and treatment to the female resident. In particular, there had been a failure to adequately assess and mitigate the risk the male resident posed; and
• Regulation 13 – there had been a failure to protect the female resident from abuse and improper treatment. In particular, there had been a failure to follow systems and processes that were in place to prevent abuse.

Following the investigation, the CQC decided to prosecute the registered manager under Regulation 22. The manager was prosecuted for failure to comply with Regulations 12 and 13, such failure resulting in avoidable harm to the female resident and the significant risk of harm to other residents. Importantly, this demonstrates that the offence can be committed even where there’s no actual harm but a significant risk of harm (although in this case, there was both actual harm and significant risk of harm).

Registered managers have legal responsibility to ensure compliance with the regulations. This case demonstrates how important it is for registered managers to follow the policies and procedures that are in place, and to report incidents when they happen. Had the registered manager followed the safeguarding policy and reported the first incident, the second incident is unlikely to have happened and she may have avoided prosecution.