can cqc prosecute individuals?

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 3 January 2023 at the time of writing) shows that the CQC have undertaken 85 prosecutions since 2009 up until 15 November 2022. Of those 85 prosecutions, 47 of them (55.29 %) were carried out in the last three years between 2020 – 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:

In all of the 85 listed prosecutions, all but one pleaded ‘guilty’ with the remaining one being found ‘guilty’. The fines imposed have ranged from £500 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.

Most recently, on 27th January 2023, it was reported that Nottingham University Hospitals NHS Trust were prosecuted for failing to provide safe care and treatment to a mother and her baby, exposing them to a significant risk of avoidable harm. The fine that can be imposed for this offence is unlimited.

The trust pleaded guilty to the offence and was fined £1.2 million by Nottingham Magistrates Court. However, this fine was reduced to £800,000 to take account of the trust’s early guilty pleas and mitigation. The trust was also ordered to pay a victim surcharge of £181 and prosecution costs of £13,668.75. This case demonstrates the difference that an early response and admission to the charges can have on the overall fine imposed, which is significant where the fine that can be imposed is unlimited.

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 one reported case in July 2015, the director of an unregistered homecare agency was prosecuted for five charges of carrying out the regulated activity of personal care without CQC registration, as well as a charge of failing to provide information relating to the management of the agency as required by the CQC. In this case, it was reported that the director had received warnings about their failure to register from the CQC on a number of occasions and when a registration application was submitted, the application was refused on the basis that they had failed to disclosure previous serious criminal convictions in another country.

The director pleaded guilty to all charges and was sentenced to eight months imprisonment, suspended for 18 months, and ordered to undertake 150 hours of community payback, or unpaid work. The director was also ordered to participate in a ten hour community course and pay the CQC’s costs of £15,000.

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 care sector, as well as increase their chances of getting any fine imposed reduced.

We can prosecute organisations or individuals. We can do this even if they are not registered with us.

Some of the regulations have offences attached, and as part of our enforcement action, CQC will be able to bring prosecutions if these regulations are breached. For regulations that we cannot prosecute against, we can consider using other actions as set out in our enforcement policy.

CQC will be able to bring prosecutions for breaches of the following regulations.

CQC may prosecute breaches of the following regulations without first issuing a Warning Notice.

A defence to all the above offences is available where the registered persons took all reasonable steps and acted with all due diligence. See Regulation 22(4).

For the remaining regulations included in this guidance: Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulations 9; 10; 13(5); 13(6); 13(7); 15; 16(1); 16(2); 17(1); 17(2); 18; 19; 20(1), 20(2)(b); 20(4); 20(5); 20(6); 20(7) and the Care Quality Commission (Registration) Regulations 2009, Regulations 13 and 22a, CQC can take other regulatory action. If the evidence surrounding one of these regulations also demonstrates a breach of another regulation that is identified as an offence, then CQC may also decide to prosecute against the regulation for that other offence.

The fact that the CQC has extended its scope for prosecution into clinical failure means those regulated by the watchdog must have a clear understanding of how it operates and its enforcement powers.

What is the CQC?

The CQC is an independent body that regulates a broad range of services that the general public rely on, including:

The regulator’s two primary purposes are:

Can the CQC prosecute people?

The CQC has the power to bring enforcement action against an individual if:

What is the process the CQC will follow if they are required to investigate a regulated service or person?

If required to make an enforcement decision, the CQC will use a four-step process:

What enforcement action can the CQC take against a regulated body or individual?

Several enforcement action routes are available to the CQC, including:

Civil enforcement powers can also be used, including:

The following special measures can also be imposed:

Can enforcement measures be appealed?

If a registered body or person disagrees with a CQC enforcement measure, it or they can appeal to the First-tier Tribunal (Care Standards).

Appeals must be lodged within 28 days of the service of a:

The latest case involved an NHS Trust being sentenced to a fine of over £2.5 million in a CQC prosecution regarding two sepsis-related patient deaths.

In this briefing, we look at what the judge said when sentencing the Trust to see what this tells us about the approach the Courts are taking, and possible trends going forward.

Key takeaways

Background

The penalty for offences under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the CQC Regulations”) - including the requirement to provide care and treatment in a safe way under Regulation 12 - is a fine. Importantly, however, the level of fine is unlimited, and the Magistrates Courts have imposed some hefty fines to date.

The largest of these so far was recently imposed against The Dudley Group NHS Foundation Trust in a case involving the CQC prosecuting the Trust on two charges of breaching Regulation 12 following the deaths in 2018 of two patients from sepsis - a 33 year old woman and a 14 year old girl.

The Trust entered guilty pleas to both offences. This follows the pattern in all CQC Regulation 12 prosecution cases concluded so far, none of which have been defended to trial, illustrating the substantial burden providers face in demonstrating to the Court that all reasonable steps have been taken and all due diligence exercised to prevent a breach of the safe care and treatment requirement.

Helpfully, the District Judge who sentenced the Trust in this case has published written sentencing remarks, which explain the thinking behind the level of fine imposed.

Court’s approach to sentencing

Given that there have only been a handful of concluded CQC prosecutions against NHS Trusts (5 including this latest case, and only 2 of those involving acute hospital providers), sentencing these cases means treading relatively new ground.

Whilst there are no sentencing guidelines specific to breaches of the CQC Regulations, the Courts are required to consider the overarching principles published by the Sentencing Council and also the closest analogous published guidelines, which are those used for health and safety offences. These provide a framework for deciding on the appropriate level of financial penalty for both individual and organisational defendants, including assessing the seriousness of the offence by looking at the defendant's degree of culpability and the level of harm/potential harm involved. The guidelines apply a systematic step-by-step approach to reaching a suggested range of sentence to be applied in each case, dependent on the particular circumstances. In this case, the judge adopted the following approach:

Step 1 - Determining the offence category by reference to culpability, harm risked and likelihood of that harm arising

Given the high likelihood of level A harm, the judge placed this case for sentencing purposes in harm category 1 - i.e. the highest category of harm.

In addition, the guidelines require consideration of two further factors which impact the starting point for the fine:

Where one or both of these factors apply (and in the case of one of the patients, it was both), the guidelines stipulate that the Court must consider whether the suggested starting point for the fine - as determined at step 2 below - should be increased.

Step 2 - Identify starting point and range for the fine

When dealing with organisations, the starting point for the fine is identified by looking at annual turnover, or equivalent. As the judge acknowledged, an NHS Trust does not have an annual turnover in the normal sense. However, he decided that the proper approach to fixing a starting point in this scenario was to equate income with turnover. Looking at the Trust’s average income over the last 3 years, which was in excess of £400 million per annum, this placed the Trust in at least the ‘large’ organisation category (defined in the guidelines as having a turnover of £50 million or more).

The judge also then had to consider whether this starting point might have to be adjusted upwards in light of aggravating features listed in this part of the guidelines or whether there were any mitigating factors that could justify a downward adjustment. There were none of the specific aggravating features present, but there were some of the mitigating factors, namely - lack of previous convictions, a good health and safety record previously and the fact that the Trust had accepted responsibility in the case.

For a high culpability, harm category 1, large organisation case, the guidelines give a starting point of £2.4 million, with a suggested sentencing range between £1.5 million and up to £6 million.

On the facts of this case, given the size of the organisation and its income and the additional concerns relating to the number of members of the public exposed to risk and the fact that the risk led to, ‘at the very least’, the death of one of the patients, the judge found that the starting point in this case should be higher than the suggested starting point in the guidelines, even taking account of the mitigating factors. Were this anything other than a public body, the judge said, he would put the starting point for the fine at £4.8 million for each of the two offences.

Step 3 - Is the proposed fine, based on turnover or equivalent, proportionate to the overall means of the organisation?

The Trust in this case had provided detailed financial information showing that, whilst the ‘turnover’ figure is high, the Trust was actually at ‘break even’ point, with a slight net deficit over the last four years. The Trust also highlighted that any substantial penalty would impact on its ability to deliver care. On this basis, the judge adjusted the starting point for the fine downwards to £3.8 million for each offence, albeit this is still higher than the usual starting point fine within the relevant category of the sentencing guidelines.

Step 4 - Consider other factors that may warrant adjustment of the proposed fine

The judge noted that, since these deaths, the Trust has taken “…significant steps to make long lasting improvements particularly in their Emergency Department. Extra staff and resources are now in place”.

In addition, the guidelines provide for fines falling to a public body to be ‘substantially reduced’ if the offending organisation is able to demonstrate that the proposed fine would have a significant impact on the provision of services. The all-important question though, is how substantial a reduction should be made on this basis?

In his sentencing remarks, the judge described this issue as a ‘dilemma’ because, whilst fines in cases such as this need to be ‘significant and meaningful’, they must at the same time not produce such a ‘dramatic effect’ on the defendant Trust that future patients are potentially put at risk of harm. As the judge observed, previous sentencing decisions have applied different levels of reduction for public bodies. However, the judge decided to adopt the approach taken by the Court in a 2017 HSE prosecution involving an NHS Trust, where an ‘NHS reduction’ of 50% had been applied. Applying this 50% reduction here took the starting point figure for the fine to £1.9 million for each offence. It is however, important to note that there is no agreed or standardised approach to how (or indeed, if) such a discount should be applied and it remains for each sentencing judge to consider each case.

Reduction for guilty pleas

In criminal sentencing, credit is given for entering a guilty plea. In this case, the Trust entered guilty pleas to the charges at the earliest realistic opportunity. As such, the judge found that the Trust was entitled to full credit, meaning a reduction of one third in relation to each fine, bringing the figure to £1,266,666 for each.

Totality Principle

Finally, given the Trust was being fined for two offences, the Court was required to consider whether the aggregate amount was ‘just and proportionate’ and, if not, whether to proportionately reduce each fine. However, the judge said he could find no reason to reduce the fine on this basis.

Hence, the Trust was ordered to pay a total of £2,533,332 (i.e. £1,266,666 for each offence), plus an agreed contribution of £38,000 towards the CQC’s costs.

What next

The number of successful prosecutions completed by CQC is continuing to rise, and it remains part of CQC’s enforcement strategy to continue this focus on criminal sanctions, where it is deemed appropriate. With each conviction to date, the approach taken to sentencing by the Court has varied but we can certainly now see some patterns emerging.

It is increasingly clear that Courts will give close consideration to the Sentencing Council guidelines and particularly to the guidelines which apply to health and safety cases and this is having a direct impact on the size of fine likely to be imposed, particularly for larger provider organisations.

The observations of the Court in this most recent case in relation to the extent of risk and the number of people exposed to a risk of harm is also important. It will very often be the case that given the nature of services provided in health and social care settings, whether that is by a busy NHS Trust Emergency Department, an inpatient ward, or a residential care setting, the number of people using the service will be high (or certainly more than one or two people involved in specific incidents cited in the prosecution proceedings). It will be interesting to see if we are moving towards a position where it will be increasingly common for Courts to infer that a number of people have been exposed to risk of harm, unless the defendant can demonstrate the contrary.

Perhaps one of the most significant points to draw from this most recent case is the emphasis placed on previous warnings and/or knowledge of risks as a result of findings from previous CQC inspections. This demonstrates even more than ever before the importance of CQC routine inspections, including the detailed commentary and findings of those reports, as well as ratings awarded. In situations where providers are aware of performance issues and are working to address them, it will be really important that this is clearly communicated and evidenced to CQC to avoid inferences being drawn in the event of incidents occurring. This is particularly pertinent in the case of longer term or more complex risk issues which cannot be fixed immediately. The current staffing pressures across the health and social care system would seem to be a good example of such an issue.

The final message to draw from this case, and which is highlighted by the Court’s detailed and methodical explanation of sentence is that, even in situations where the breach is clear and a guilty plea is to be entered, there is much that a defendant organisation must consider in reviewing the case as presented by the CQC and preparing for sentencing, as decisions made by the Court as part of this process can have a real and significant impact on the financial consequences and reputational impact of the case.

How we can help

We can provide expert support to independent and public sector providers in the event of CQC enforcement action, from responding to Warning Notices through to defending criminal prosecutions, with our team being able to offer specialist criminal expertise in this area.

Published 17 mayo 2017

Since April 2015 the CQC has had a power to bring criminal prosecutions against health and social care providers for failing to provide care and treatment in a safe way. These powers sit alongside those that exist for the Health and Safety Executive (HSE) under the Health and Safety at Work etc. Act 1974.

After a slow start, the CQC has been using its prosecution powers with increasing frequency over the last few months.

In this briefing, we look at patterns emerging from the cases which have come before the criminal courts so far, and what to expect going forward as the CQC's use of its prosecution powers gains momentum.

Before 1 April 2015, the CQC had some limited powers to bring criminal prosecutions (e.g. for carrying on a regulated activity without being registered to do so), but these tended to be little used in practice.

The position changed from 1 April 2015. New regulations came into force which widened the CQC's powers to include the ability to prosecute providers for breaching certain of its Fundamental Standards without the need to issue a Warning Notice first. Since 1 April 2015, the CQC has therefore become the lead regulator in taking enforcement action against registered providers in the event of safety failings in the care and treatment context.

Coinciding with the introduction of these new powers, a Memorandum of Understanding was agreed between the CQC, Health & Safety Executive (HSE) and Local Authorities which - in effect - transferred enforcement responsibility for safety breaches involving registered health and social care providers from the HSE/Local Authorities to the CQC. There is however an overlap as the HSE will still continue to prosecute CQC registered providers in certain circumstances and so inevitably there is scope for confusion as to who is the appropriate enforcement authority.

Under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, it is an offence to fail to comply with the following requirements if this results in avoidable harm or exposes a service user to a significant risk of avoidable harm:

It is a defence for the provider to show that it took all reasonable steps and exercised all due diligence to prevent the breach.

The first prosecution under the CQC's new powers was concluded in June 2016 - i.e. some 14 months after the new regulations came into effect - when a care home was fined by the criminal courts for failure to provide safe care and treatment resulting in avoidable harm.

This was followed by a second CQC prosecution of a care home for failure to provide safe care in September 2016.

Since then, the pace of CQC prosecutions has accelerated, with three concluded CQC prosecutions for safety failings already this year - a case each month in February, March and April 2017, plus the news in March that the CQC is pursuing its first prosecution against an NHS Trust for failure to provide safe care.

After the first prosecution last year, the CQC's Deputy Chief Inspector of Adult Social Care said: "When serious incidents occur, we now have additional powers to hold providers to account in the courts. In future if we find that a care provider has put people in its care at risk of harm, we will always consider using those powers to the full to prosecute those who are responsible."

All the signs are that the CQC is keeping to its word on this, and that numbers of CQC prosecutions will continue to grow.

Looking at the five 'safe care' CQC prosecutions that have so far come before the courts, are there any patterns which emerge?

Nature of breach - Whilst all prosecutions so far have related to breach of Regulation 12 safe care and treatment requirements, the cases have covered a wide range of safety issues, including medication errors, uncovered radiators and use of bed rails. This reflects the broad scope of the duty to provide care safely. Recurring themes have included:

Harm - Technically, prosecutions can be brought against providers without actual harm having been suffered but where there is nevertheless a risk of harm.  Based on the cases so far, actual harm seems more likely to result in a prosecution (although most of the cases have involved risk of harm to other service users as well as an incident of actual harm). In considering whether charges should be brought, the CQC - in addition to assessing the strength of the evidence in each case - will no doubt consider all of the circumstances and in particular the public interest, when determining whether a prosecution should be brought.

Warning Notices - The CQC does not need to serve a Warning Notice before prosecuting for a breach of regulations which constitute a criminal offence and, indeed, Warning Notices were not issued in all of the prosecutions brought to date. What is clear, however, is that where Warning Notices are issued and there has been a failure to implement appropriate remedial steps, there will be a much greater likelihood of a prosecution being brought.

All providers prosecuted so far have pleaded guilty, so none of the cases have gone to full trial. The lack of defence of these cases so far illustrates the significant burden placed on providers facing trials to demonstrate to the court that all reasonable steps have been taken and that all due diligence has been exercised to prevent the breach.

The penalty for offences under the CQC regulations is a fine. Importantly, however, the level of fine in the Magistrates Court is now unlimited, and the Magistrates Courts where these cases have all been sentenced have imposed some hefty fines on the providers prosecuted to date - e.g. £190,000 plus costs in one case and £150,000 plus costs in another.

This is partly because the courts have to follow the tough new sentencing guidelines for health and safety offences which were introduced from February 2016. These provide a framework for deciding on the appropriate level of financial penalty, including assessing the seriousness of the offence by looking at the defendant's degree of culpability and the level of harm/potential harm involved.

It is also worth remembering that a CQC prosecution can be brought against individual Registered Managers, as well as against the provider organisations themselves. In one of the prosecutions concluded so far, for example, the care home's former Registered Manager was fined £665.

Apart from the financial penalties involved, a CQC prosecution is likely to do considerable damage to a provider's reputation, with full details of CQC prosecutions and the outcome of court proceedings being published on the CQC's website.

• Register care providers in England.
• Monitor, inspect and rate health and social care services.
• Protect service users by acting on providers who fall short of the CQC's standards.
• Speak with an independent voice, and air their stance on major quality issues.