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It is a criminal offence to carry out a regulated activity without CQC registration under section 10(1) of the Health and Social Care Act 2008. If found guilty of an offence under section 10, the court can impose an unlimited fine and/or a sentence of up to 12 months imprisonment.
Our specialist CQC defence lawyers have acted for numerous care providers in relation to criminal investigations and prosecutions undertaken by the CQC. We regularly provide advice to care providers on whether they fall within the scope of CQC registration and assist them to make robust written responses under caution where the CQC are carrying out a criminal investigation in relation to a suspected offence under section 10 of the Health and Social Care 2008.
If you have received a suspected criminal offence letter, PACE disclosure notice or a court summons, we can provide you with specialist advice and representation to protect your position. For a confidential discussion with one of our specialist CQC lawyers, please contact us on 0161 696 6250 or complete our online enquiry form.
The various regulated activities and the definitions of those activities are contained in schedule 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. These include:
Where the CQC suspect that an individual or company is, or has been, carrying out a regulated activity without CQC registration contrary to section 10, and that offence may be continuing, the CQC will usually write to that individual or company and provide the following three options:
You will usually be given 28 days to respond to this letter and any response will be made under caution.
The CQC can also provide a PACE disclosure notice, which sets out the alleged facts of the offence and provides a list of questions requiring a response within 28 days. This response is also made under caution and is usually offered in lieu of an interview under caution where it would not be possible to identify just one individual to answer their questions. However, where this is possible, the CQC can also invite an individual to an interview under caution at CQC offices.
The CQC’s Enforcement Policy (2015) sets out the CQC’s criminal enforcement powers, which includes the ability to issue a caution, a fixed penalty notice, or prosecute. A fixed penalty notice for a section 10 offence is £4,000, however, if prosecuted, the fine is unlimited and the provider will also be ordered to pay the CQC’s legal costs of the prosecution.
The consequences of failing to properly identify the correct CQC registration position can therefore be devastating, both financially and reputationally. It is therefore essential to establish the correct legal position in respect of any registration requirements for your individual set of circumstances and prior to setting up a new business. For a confidential, no-obligation discussion with one of specialist CQC solicitors, call us now on 0161 696 6250.
It is ultimately a provider’s responsibility to establish whether they need to be registered with the CQC. The key to minimising any potential criminal enforcement action or prosecution by the CQC is by ensuring that early and prompt action is taken to rectify any genuine error as quickly as possible. An application for registration should be submitted to the CQC without delay as soon as you become aware of your need to register. This will provide valuable mitigation in any prosecution and may encourage the CQC to take no further action.
Failing to make sufficient and appropriate enquiries to determine the correct registration position is not a suitable defence and this will only increase the likelihood of criminal enforcement action. If you are unsure whether you require CQC registration, you should contact our specialist CQC solicitors as soon as possible.
Where regulated activities have been undertaken for some time without registration, it is important that any responses you make to the CQC are carefully drafted and considered to protect your position and that proactive steps are taken to rectify this in a reasonable and timely manner. However, in the event of criminal enforcement action or a prosecution by the CQC, we can provide you with specialist legal advice in order to mitigate the potential impact of such action on you and your business.
Our specialist CQC lawyers regularly advise a range of different services on the scope of CQC registration and have represented numerous unregistered providers in criminal investigations and prosecutions by the CQC. Some of our recent case are set out below.
Our CQC lawyers acted for a self-employed carer (‘personal assistant’) who was being investigated by the CQC for carrying out the regulated activity of ‘personal care’. The CQC wrote to our client and requested a written response under caution, providing three options. Our CQC lawyers advised on their registration position and subsequently made detailed written representations to the CQC explaining why they fell outside the scope of CQC registration. After considering our representations, the CQC confirmed that they would be taking no further action.
Our CQC lawyers acted for a supported living service for people with learning disabilities and mental health needs. The CQC suspected the service was carrying out the regulated activity of ‘personal care’ and requested a response under caution. We advised the service on the scope of CQC registration in line with their current activities and set-up, as well as the definition of personal care and relevant exemptions. Our lawyers made a detailed written response to the CQC setting out why they currently fell outside of the scope of CQC registration and providing evidence of their CQC registration application, as well as relevant mitigation. The CQC thereafter decided to take no further action.
Our specialist CQC lawyers acted for a consultant surgeon who ran a private clinic providing non-surgical aesthetic treatments and interventions. The CQC had been informed that the clinic was providing a number of surgical procedures, botox and mole removal and requested a written response under caution. Following our advice on their registration position, we submitted a detailed response to the CQC explaining why their current treatments and interventions did not fall within the scope of CQC registration for either regulated activity. In light of our response, the CQC confirmed that they would not be taking any criminal enforcement action.
Our specialist CQC lawyers acted for a company, owned by a dentist, which operated a teeth straightening service. The service operated as a direct to consumer (DTC) platform. The company was being investigated by the CQC for carrying out the regulated activities of ‘treatment of disease, disorder or injury’ and ‘diagnostic and screening procedures’ following a number of complaints from patients.
The CQC invited the company to make written representations in lieu of attending an interview under caution and provided them with a PACE pre-interview disclosure notice consisting of numerous questions. We made a detailed response under caution and put forward detailed mitigation on behalf of the company outlining why they should not be prosecuted, including the steps they had taken to clarify their registration position and the details of their subsequent registration application. After considering our representations, the CQC decided to issue a fixed penalty notice of £4,000 instead of a prosecution, which would have left the company open to an unlimited fine and costs.
If you require specialist legal advice on whether you fall within the scope of CQC registration, or you have received notification from the CQC that they are investigating or prosecuting you for an offence under section 10 of the Health and Social Care Act 2008, we have a dedicated team of specialist CQC solicitors who would be happy to help you. Call our specialist CQC solicitors now on 0161 696 6250 or contact us via our online enquiry form.
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