The Care Quality Commission (CQC) can take health and social care providers to court for failing to provide care and treatment in a safe way – they now have similar powers to the Health and Safety Executive (HSE), and they are using them. They brought two cases in 2016, five in 2017, and two cases have been heard so far this year.
Some powers have transferred to the CQC from local authorities and the HSE, but there is some overlap, which may cause confusion. The penalties have also changed – providers now face unlimited fines and could be left with criminal records.
So providers need to know how to show that they have done all they can to avoid harm to service users, how to respond to CQC allegations and how to learn from any action that follows.
Advice on how to respond after an incident and if an investigation or prosecution follows is essential and can make a crucial difference to the results.
The CQC can now:
- bring a private prosecution against a provider for breaching some of its fundamental standards without the need to issue a warning notice first
- bring a criminal prosecution against anyone failing to meet their duty of care in providing safe care and treatment
- prosecute, if a failure to meet the following requirements leads to avoidable harm or a significant risk of that harm for a service user;
– 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)
But 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 cases heard so far fall into patterns, often relating to the nature of the breach – in all cases, the defendants have pleaded guilty, perhaps because demonstrating that you have done all you could to prevent harm is a considerable burden. Fines have been sizeable, ranging from £190,000 to £16,000.
Cases can be brought before any actual harm is caused but so far prosecutions have generally followed an incident where someone was harmed, and most have involved a continuing risk of harm to others. The CQC will take the public interest into account when considering a prosecution.
It does not need to issue a warning notice before prosecuting if the breach is a criminal offence – if the CQC does issue a warning notice, and you fail to act on it, they are more likely to prosecute.
Although all prosecutions so far have related to breach of the safe care and treatment requirements, they have covered a wide range of safety issues, including medication errors, uncovered radiators, shower commode chairs and use of bed rails. This reflects the broad scope of the duty to provide care safely.
- Document management/paperwork – one case involved medication errors with anti-coagulant medicine, but others have shown paperwork problems affecting the recording or allergies, medication times being un-recorded, lack of the right medicine in stock etc
- Risk assessments – failures to do these properly in relation to all areas of the home, for people with disabilities or physical challenges such as problems with swallowing or for those with dementia
- Equipment – the safe use of radiators featured in two cases, and one home failed to act on advice about bed rail extensions
- Staff training – the issues around a service user who fell from a shower commode chair included the importance of safety belts, how to fit chair straps properly and the need to heed warnings about problems.
Further risks to providers
The CQC can prosecute 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 prosecution is likely to do considerable damage to a provider’s reputation, with full details of prosecutions and the outcome of court proceedings being published on CQC’s website.
Enforcement policy and fixed penalty notices
The CQC says that it will use fixed penalty notices when it has the evidence to prosecute, if a fixed penalty notice is more proportionate and will achieve improvements. They can also be used when “the offence has an insubstantial impact on people using the service.”
The use of such notices also avoids the need for a private prosecution which the CQC must fund itself, so it may consider that it can achieve its regulatory aims through civil enforcement procedures.
A letter from the CQC about an alleged offence will set out the alleged offence, a factual summary of the matters which CQC have found, usually as the result of an inspection, and then the options open to the recipient of the letter.
There are usually three options for responding – response should be within 28 days:
- Give no response to the letter.
- Respond, admit the offence but put forward mitigation (reasons why you say the offence is less serious).
- Respond, deny the offence and put forward a defence.
Derek Jones, an expert in health and social care, said: “Our experience has been that where an offence has been denied and a defence put forward, often no further action has been taken. When the only option has been to admit the offence and put forward mitigation, we have seen fixed penalty notices issued but no private prosecutions.”
Derek can be contacted at firstname.lastname@example.org or on 0118 9450 159.