The CQC has a wide range of criminal enforcement powers which include the power to prosecute and issue fixed penalty notices or simple cautions to organisations and individuals. These powers are, however, limited to registered providers and certain individuals who work for providers such as directors and managers, for example.
Generally, the CQC will only consider issuing criminal proceedings where the breach in question is assessed to be serious; there are multiple or persistent breaches; there is a realistic prospect of conviction based on the evidence; and it is considered to be in the public interest to use their powers of prosecution.
A list published by the CQC (last updated on 4 June 2024 at the time of writing) shows that the CQC have undertaken 155 prosecutions since 2009 up until 16 May 2024. Of those 155 prosecutions in the last 15 years, 58 of them (37.42 %) were carried out in the last three years since the start of 2022.
It is therefore clear that the CQC are increasingly taking a more proactive approach to criminal enforcement action and prosecutions in response to identified regulatory breaches and particularly those who are carrying out regulated activities without the appropriate registration. We anticipate that this approach and trend will only continue as regulatory compliance becomes more challenging for providers dealing with the significant ongoing pressures facing the adult social care sector as a whole.
The CQC’s reported prosecutions have covered a variety of offences including:
Section 10 of the Health & Social Care Act 2008: carrying out a regulated activity without registration
Regulations 12 & 22 of the Health and Social Care Act 2008 (Regulated activities) Regulations 2014: failure to provide safe care and treatment resulting in avoidable harm or a significant risk of avoidable harm
Regulation 13 of the Health and Social Care Act 2008 (Regulated activities) Regulations 2014: failure to safeguard people from suffering any form of abuse or improper treatment while receiving care and treatment
Regulation 16 & 22 of the Health and Social Care Act 2008 (Regulated activities) Regulations 2014: failure to notify the CQC
Regulation 20A of the Health and Social Care Act 2008 (Regulated activities) Regulations 2014: failure to display CQC performance ratings
Section 64 of the Health & Social Care Act 2008: failure to provide information which the CQC considers is necessary or expedient to have for the purposes of any of its regulatory functions.
In all of the 155 listed prosecutions, all but six pleaded ‘Guilty’ which equates to 96.13%. Of those six pleading ‘Not Guilty’, only one was found ‘Not Guilty’ after Trial.
The fines imposed have ranged from £100 to £2,533,332. This is quite a wide range but this is due to the fact that for some offences, the Magistrates Courts have the power to order unlimited fines, whereas the courts are limited in the fines that can be imposed in other offences.
These fines are also 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. However, it is abundantly clear that the fines issued in CQC prosecution cases can be significant and no doubt severely affect a provider’s ability to continue to invest in and maintain their care business.
In May 2024, it was reported that a care home provider was prosecuted for failing to provide safe care and treatment to a 75-year-old male resident who was at risk of falls, exposing him to a significant risk of avoidable harm which ultimately led to his death. The fine that can be imposed for this offence is unlimited.
The care home provider pleaded guilty to the offence and was fined £24,000 by Brighton Magistrates Court, as well as £800 for a separate offence of failing in their duty of candour. The provider was also ordered to pay a victim surcharge as well as the CQC’s legal cost, the exact amount of which was determined at a later date. Often these fines factor in up to a third reduction for an early guilty plea, where an early admission is made, which can often make a significant difference to the overall fine imposed.
Whilst most of the offences prosecuted by the CQC are punishable by a fine only, in a prosecution for an offence of carrying out a regulated activity without registration, contrary to Section 10 of the Health and Social Care Act 2008, the court can impose an unlimited fine and/or a sentence of up to 12 months imprisonment.
In another reported case in May 2024, the director of a gynaecology service was prosecuted for carrying out regulated activities without CQC registration, with it being reported that one patient of the service suffered severe emotional harm and physical distress. The director, who was also a doctor, pleaded Guilty and was sentenced to 16 weeks imprisonment, suspended for 12 months, and ordered to complete 200 hours of unpaid work. The director was also ordered to pay £5,000 costs and a victim surcharge of £154.
What should I do if I am being prosecuted by the CQC?
It is vital that anyone facing criminal enforcement action, particularly a CQC prosecution, seeks specialist legal advice as soon as they become aware of a potential criminal investigation. 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, 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 long-standing reputation in the health and social care sector, as well as increase their chances of getting any fine imposed reduced.
If you are facing a criminal investigation or prosecution by the CQC, you can contact our specialist CQC solicitors now on 0161 696 6250.
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