Jordan Glackin, Healthcare Partner, Shakespeare Martineau
Our research has found that the Care Quality Commission (CQC) is prosecuting and fining care homes and registered providers more now than pre-pandemic.
We analysed the list of prosecutions brought by the CQC, which details individual incidents since 2009, looking into seven health and social care services relating to care homes.
When comparing pre-pandemic (2017-2019) with pandemic and post-pandemic (2020-2022), prosecutions by the healthcare watchdog increased by 50% – from 30 to 45.
Furthermore, the average fine amplified by 242% to more than £550,000. In comparison, the average fine pre-pandemic was just over £160,000.
Furthermore, the largest fine handed down pre-pandemic was £225,170 in 2019. During and post-pandemic, this was £2.5 million, which was delivered in 2021 – an increase of more than 1,000%.
Prosecutions in the southern regions doubled, and in the North and Midlands, they increased by a total of 54%.
The data shows the most significant increase in prosecutions by region is in the South East, where the number of charges have risen by 267%.
Regulation 12 (safe care and treatment) was the most breached over the past six years, accounting for 63% of all prosecutions.
Pre-pandemic, in 2017, a care home in South London was fined £24,500 after a resident fell against an uncovered radiator and received serious burns following prolonged contact with the appliance.
The court heard there was clear evidence, given the nature of the burns, that had the radiator been covered, the resident would not have been harmed.
In 2020, a Suffolk nursing home accommodating older people was fined £72,734 after a resident became stuck against a hot pipe after falling – inflicting significant burns to her back.
A subsequent investigation by the CQC found the care provider failed in its duty to implement systems and processes to protect people from hot surfaces, meaning the incident could have been avoid.
These cases demonstrate that the CQC will use its powers to hold providers to account for serious breaches of its regulations.
They also highlight that the fines and costs ordered in such prosecutions can be substantial and that they are dramatically rising; despite the prosecutions occurring only three years apart and being similar incidents, the total fine handed down increased by 197%.
Mitigating the risk
After conversations with clients over the past couple of years, these findings are not surprising. The CQC had virtually stopped all inspections – except in emergencies – during the pandemic.
As a result of the backlog, an increase in inspections and therefore potential prosecutions once normality started to resume was to be expected.
With more catching up likely to be done and the care sector being placed firmly under a microscope during the pandemic, particularly in the eyes of the public, we expect this activity to increase further – especially as some cases have taken more than three years to be brought forward.
There are cautionary measures care homes and registered providers can put in place to mitigate the risk of persecution, limit the impact of prosecution and, in some cases, prevent it from proceeding to court.
For example, providers have a responsibility to promote an environmentally-sustainable health and care system. Therefore, when exercising their judgement, professionals and practitioners are expected to take this guideline fully into account, alongside the individual needs, preferences and values of their patients or the people using their service.
As the CQC is using its powers more than ever, it is vital providers ensure compliance with their regulatory and legal obligations; keep detailed and accurate records; stay up-to-date with any legal or policy changes; and seek specialist legal advice at the earliest opportunity.