In a press release issued by the Care Quality Commission (CQC) on 18 February 2022, it was reported that the CQC had prosecuted a care home provider of a residential care home providing personal care to people aged 65 and over, who may have dementia.
The care home provider was prosecuted for an offence of failing to provide safe care and treatment to one resident (‘JH’), resulting in her being caused avoidable harm. This is a criminal offence contrary to Regulations 12 and 22 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 [‘2014 Regulations’]. It is a legal requirement for a care home provider to provide safe care and treatment to anyone living at the home, which includes ensuring that any risks are assessed and mitigated in relation to health and safety.
It is a defence to a prosecution for this offence if you can establish, on the balance of probabilities, that you took all reasonable steps and exercised all due diligence to ensure safe care and treatment was provided. If found guilty of this offence, the Magistrates Court have the power to impose an unlimited fine and the fine is determined by a number of factors including the level of culpability and harm, as well as the company’s turnover or an individual’s income.
In this case, it is reported that in July 2019, a door was removed and left in a communal hallway whilst maintenance work was being carried out at the residential care home. Around two months later, it is reported that JH was found with the door on top of her. It is understood that JH was at risk of falling and suffered from dementia and osteoporosis. Whilst she was taken to hospital with a hip fracture, she unfortunately passed away around 11 days later.
The CQC alleged that the care home provider failed to provide to provide safe care and treatment by not removing the door from the communal corridor to a safe place and thus mitigating any potential risk to the residents living at the home.
In the CQC’s press release, it is confirmed that the care home provider pleaded ‘guilty’ at Reading Magistrates Court and was ordered to pay a fine of £40,000 plus the CQC’s legal costs of £10,868.60 and a victim surcharge of £181. This is a total of £51,049.60.
The CQC’s Head of Inspection for adult social care, Rebecca Bauers, commented on this case as follows:
“The majority of care providers do an excellent job. However, when a provider puts people in its care at risk of harm, we will take action to hold them to account and to protect people.
“I hope the outcome of this prosecution reminds care providers of their duty to assess and manage all risks, including environmental risks, to ensure people are kept safe”
This case demonstrates that the CQC will use their criminal enforcement powers to hold care home providers to account for serious breaches, particularly where a breach results in a resident’s death. It also makes clear that the fines and costs ordered in such prosecutions can be quite large and can significantly affect a care home provider’s financial position, which may impact their ability to invest in and maintain a service. CQC prosecutions can also lead to irrefutable damage to a care home provider’s reputation and standing within the adult social care sector and affect contracts and funding, amongst other things.
With the CQC increasingly using their powers of prosecution for serious breaches of the 2014 Regulations, now more than ever, it is vital that providers ensure compliance with their regulatory and legal obligations; keep detailed and accurate records; stay up-to-date with any legal or policy changes; and seek specialist legal advice at the earliest opportunity.
What should I do if I am prosecuted by the CQC?
If you are subject to a criminal investigation by the CQC or you are facing a CQC prosecution, it is vital that you seek specialist legal advice immediately. Early action and a measured and careful approach to the investigation, and any response made, can limit the impact of a prosecution; or even prevent it from proceeding to court at all.
In any event, a response should only be made to the CQC, particularly where it is made under caution, after full consideration of the evidence against you. In addition, it is vital that anyone subject to a prosecution engages in the proceedings and is appropriately represented at court in order to protect their interests and reputation in the social care sector.
If you are facing a criminal investigation or prosecution by the CQC, you can contact our specialist CQC solicitors now on 0161 696 6250 for a confidential discussion.
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