Since the CQC’s enforcement policy was published in 2015, it is clear to see that the CQC’s use of their criminal enforcement powers has been on the rise, particularly since the Covid-19 pandemic.
The CQC has the power to prosecute registered providers and certain individuals such as company directors and registered managers. The CQC’s criminal enforcement powers include the ability to issue fixed penalty notices or simple cautions, as well as prosecute for a number of offences. The most common offences prosecuted by the CQC include (but are not limited to):
- Carrying on a regulated activity without registration (Section 10 of the Health and Social Care Act 2008)
- Failing to provide safe care and treatment resulting in avoidable harm or a significant risk of avoidable harm (Regulations 12 & 22 of the Health and Social Care Act 2008 (Regulated activities) Regulations 2014)
- Failing to safeguard people from suffering any form of abuse or improper treatment while receiving care and treatment (Regulation 13 of the Health and Social Care Act 2008 (Regulated activities) Regulations 2014)
Figures published by the CQC, which were last updated on 5 September 2023 at the time of writing, show that between 2016 and the end of 2020, there were 51 prosecutions which collectively resulted in fines totalling £2,347,395.15, with a total of £427,822.32 awarded in prosecution costs. Most of these prosecutions took place just prior to or at the start the Covid-19 pandemic, between 2018 – 2020, during which 41 of these prosecutions took place and these accounted for £1,552,760 of the fines ordered.
However, the number of prosecutions pursued by the CQC and the fines awarded in these prosecutions is clearly on the rise, especially post-pandemic. Between January 2021 and June 2023, the published figures show that there have been 51 reported prosecutions and in those cases, the total amount of fines ordered in those cases amounted to a massive £8,587,946 plus prosecution costs of £631,474.07. This equates to an increase in the total amount of fines of 453% from 2018-2020 and an increase of 24.4% in the number of prosecutions.
The individual fines imposed in these prosecutions between 2021 and 2023 ranged from £100 to £2,533,332.00. This is because, for some offences, the Magistrates Courts have the power to order unlimited fines, whereas other offences are capped at certain amounts.
Fines are also calculated based on a number of factors including the seriousness of the offence; culpability; the actual harm caused; and the company’s annual turnover or an individual’s financial circumstances. It is also important to note that, if the offence is accepted, credit for an early guilty plea can lead to a deduction of up to a third off the total fine.
It was recently reported that a provider of mental health services was fined over £1.5 million after pleading guilty in a criminal prosecution by the CQC, and was ordered to pay almost £80,000 in prosecution costs. This provider was prosecuted for the offence of failing to provide safe care and treatment contrary to Regulations 12 and 22 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 after a young woman sadly took her own life while a resident on a ward in one of their services. It was reported that the provider was aware of this young woman trying to harm herself in an almost identical way four months earlier, yet they failed to mitigate the known environmental risk she was exposed to.
What should I do if I am being prosecuted by the CQC?
If you are facing a CQC prosecution or criminal investigation, it is important that you seek expert legal advice from a specialist CQC solicitor as soon as possible. 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.
If prosecuted, it is vital that you are appropriately represented at court in order to protect your interests and long-standing reputation in the health and social care sectors, and improve your chances of keeping any fine and prosecution costs to a minimum.
Our specialist team of CQC solicitors have extensive experience of advising care providers who are subject to a criminal investigation and prosecution. For a no-obligation discussion with one of our CQC specialists, contact us now on 0161 696 6250 or via our online enquiry form.
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