With the Care Quality Commission’s new Single Assessment Framework in full swing, Amanda Narkiewicz, partner at law firm Mills & Reeve, assesses the uptick in CQC prosecutions and its approach to enforcement under the new system

Since April 2015 when the Care Quality Commission took over criminal investigations and the prosecution role of the Health and Safety Executive for healthcare harm events, the CQC has been using its criminal enforcement powers with increasing appetite.

A review of the CQC’s data set of prosecutions it has brought to date reflects a rise in the use of its enforcement powers, particularly since the Covid-19 pandemic. The regulator has the power to prosecute health and social care providers if they fail to provide safe, high-quality care. So, whether you are a registered provider or a registered manager or a company director, the CQC has the power to prosecute both care home operators and individuals.

The CQC has a range of civil and criminal enforcement powers and sometimes it will be appropriate for it to use both civil and criminal enforcement powers at the same time. The CQC uses its enforcement policy and its enforcement decision tree to make decisions about what enforcement power to use based on the nature of the breach.

There are several prosecutable offences in the Health and Social Care Act 2008 and related regulations (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and Care Quality Commission (Registration) Regulations 2009). Based on CQC data, prosecutions cover the following breaches, but are not limited to:

• Regulation 12: Failing to provide safe care and treatment resulting in avoidable harm or a significant risk of avoidable harm.

• Regulation 13: Failing to safeguard people who use services from suffering any form of abuse or improper treatment while receiving care and treatment.

• Regulation 20: Duty of candour.

• Regulation 20A: Failure to show CQC rating on website.

• Section 10: Carrying on a regulated activity without registration.

• Section 64: Failure to provide information.

The CQC’s criminal enforcement powers cover cautions, fixed penalty notices and prosecutions. Last year the most common offences prosecuted by the CQC were included under Regulation 12 and Section 10.

Where breaches of the regulations don’t constitute a criminal offence, the CQC can enforce the standards by using its civil powers to impose, vary or remove conditions; and suspend a registration and or cancel a registration. Failure to comply with the the CQC’s civil powers is a criminal offence and may also result in a prosecution.

CQC data indicates that prosecutions are on the increase, rising from 21 reported prosecutions in 2022, to 25 in 2023, with four prosecutions this year to date. The individual fines imposed in these prosecutions ranged from £2,511 to £2,571,502. For some offences the Magistrates’ Courts have the power to order unlimited fines, whereas other offences are capped at certain amounts. Fines are also based on several factors and a credit for an early guilty plea can lead to a reduction in the total fine.

Advice

We would encourage all care providers to take stock of their compliance procedures as there does seem to be an increasing appetite for the regulator to take both criminal and civil enforcement action.

Are we likely to see an increase in CQC prosecution and enforcement action under the new assessment framework? That remains to be seen. If the CQC achieves its ambition to be a ‘dynamic regulator’, then in its own words: “We’ll use our powers and act quickly where improvement takes too long, or where the changes won’t be sustainable. We’ll take action where services are unable to identify systemic issues in their own organisational culture or fail to learn lessons from widely publicised failures happening across health and care.”

If you are facing a CQC prosecution or criminal investigation do seek early legal support as it can limit the impact of a prosecution on your care home business. And don’t forget to notify your insurer.