CQC criminal investigations & prosecutions

Interviews under caution - CQC

The CQC have the power to invite any of the following people to an interview under caution:

• Registered provider
• Registered manager
• Directors
• Company secretary
• Officer of an unincorporated association or a member of its governing body

You will usually be invited to attend the CQC's offices for the interview on a set date and time, and will be provided with limited disclosure prior to the interview. However, you are under no obligation to attend an interview under caution and it is therefore vital that you seek specialist legal advice immediately upon receipt of an invite.

At the interview, you will be read the caution: You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.

Our specialist CQC defence lawyers regularly provide representation at interviews under caution and can advise you on the best course of action in your case to ensure that you do not prejudice your position in the CQC’s criminal investigation. You can view our CQC Case Studies for more information on our recent cases.

‘Suspected criminal offence’ - written response to the CQC

The CQC may write to you to advise that they have grounds to suspect you have committed a criminal offence and request a written response within 28 days.

You will usually be given three options at this stage:

1. To make no response to this letter
2. To admit the offence and put forward mitigation; or
3. To deny the offence and put forward a defence

It is important that you seek the appropriate legal advice at this stage to ensure that you select the right option for your individual circumstances and any response you make is carefully drafted and puts forward any appropriate defence and/or mitigation.

PACE disclosure notice – written response to the CQC

The CQC may write to you to confirm that they are investigating you for a criminal offence and provide with you with 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 aim at this stage will be to avoid any further action or to limit any action to a fixed penalty notice, which would usually result in a much lower fine than if the CQC decided to prosecute. It is therefore vital that you seek specialist legal advice at this stage and that you ensure that any response you make is carefully drafted, after a full and detailed review of the CQC’s evidence to support the allegations and sufficient consideration of the CQC’s prosecution criteria.

Our specialist CQC defence lawyers have significant experience of successfully defending care providers in these types of criminal investigations by the CQC. You can view our CQC Case Studies for details of some recent successful cases.

CQC prosecution

The CQC will 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
• It is considered to be in the public interest to use the CQC’s powers of prosecution

If the CQC issue criminal proceedings against you, you will receive a court summons to appear before the Magistrates Court at a specific time and date. At this hearing, you will be expected to enter your plea: guilty or not guilty. Depending on your plea, a sentencing hearing or a trial will then be listed for a later date.

The CQC may bring a prosecution within a period of 12 months from the date on which sufficient evidence to warrant the prosecution came to their knowledge. However, this is limited to no more than 3 years after the commission of the relevant offence.

Our key advice

If you are facing CQC criminal enforcement action, particularly a CQC prosecution, it is vital that you seek specialist legal advice as soon as you become aware of a potential criminal investigation. Early action and a measured and careful approach to the CQC’s 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 a full consideration of the evidence against you and the consequences of the offence. Where the evidence is stacked against you, an early admission may be the best way forward, with strong mitigation to assist in trying to minimise any fine imposed. In addition, it is vital that you engage in the proceedings and you are appropriately represented at court in order to protect your interests and reputation in the health and social care sector.

For a confidential discussion with a member of our team, please contact us on 01616 966 229 or complete our online enquiry form.