Jaeden Kulis

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.

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