Legal Opinion

The increasing use of the CQC’s criminal prosecution powers

Laura Hannah, Partner, Stephensons Solicitors

 

 

The CQC has a wide range of criminal enforcement powers which include the power to prosecute and issue fixed penalty notices or simple cautions. 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.

Recent Statistics & Case Studies

In recent years, it has become apparent that the CQC have taken a more proactive approach to criminal enforcement action and there is no doubt that they are clamping down on regulatory breaches and particularly those who are carrying out regulated activities without the appropriate registration. The CQC’s annual report 2018 – 2019 was published in July 2019 and the statistics contained within this report clearly demonstrate the CQC’s increasing use of their enforcement powers over the past few years. The report confirms that the CQC took criminal enforcement action against 211 care providers in 2018/2019, which reflects a 32% increase from 2017/2018 and the CQC identify this as “a continuing trend over the last two years”.

There have already been numerous reported prosecutions in the last few years. In April 2017, a care provider was ordered to pay £163,185.15 in fines and costs following the death of a resident, who fractured their hip after falling out of bed. Following this, in October 2017, another care provider pleaded guilty to the Regulation 12 offence and was ordered to pay £59,570.58 in fines and costs by Camberwell Magistrates’ Court. This related to the care a 72 year old woman who was burned after sitting on a portable heater. More recently in 2018, a care provider was ordered to pay fines and costs of £25,620 after a 66 year old resident sustained serious injuries following a fall down a flight of stairs. Another provider was also ordered to pay fines and costs of £38,170 in 2019 after the death of an 83 year old resident who was found trapped between their bed and bed rails.

As can be seen from these cases, the fines issued in CQC prosecution cases can be significant and in some cases, could severely affect a provider’s ability to continue to invest in and maintain the business for the benefit of the remaining residents. This is because, for some offences, the Magistrates Courts have the power to order unlimited fines. These fines are 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 could lead to a deduction of up to a third off the total fine.

It is therefore 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.

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