The recent scandal of non-disclosure by the Crown Prosecution Service in relation to rape cases of evidence only available to the prosecution which tends to support the defence case, has brought into focus the duty on public bodies, where criminal charges are asserted, to disclose information which they feel both supports their case and crucially, that which undermines it. The same duty does not apply to those defending a particular claim although there is a burden on the defence to prove a set of circumstances to counter the prosecution’s account of events. The burden of proof does not shift, but evidence raised may call for an answer or else it will stand.
In health and social care it is clear that the evidential burden of proof lies with the regulator to prove its case. This applies whether the proposed enforcement action is of a civil or criminal nature. At the same time the provider of care is likely to hold all of the substantive evidence upon which any proposed action seeks to rely on. Consequently the provider has the potential to possess the upper hand in any proceedings if the evidence it can provide is robust and duly explained. This is often not the case due to a misguided assessment of the evidence which the provider holds to advance its position.
The burden of proof lies with the regulator to prove non-compliance with regulations or any suspected criminal action. It is worthwhile noting that every investigation into a suspected regulatory breach is likely to consider the prospect of criminal action. By way of example CQC specifically refer to this consideration in their enforcement policy.
Defending any proposed claim is of the upmost importance since an uncontested finding by the regulator can form the beginning of more aggressive, and ultimately criminal proceedings, against the provider. Any finding that is not contested is read as fact and can be relied on in future proceedings to present a negative picture of the provider.
The regulator can secure an easy win when a provider fails to properly evaluate its evidence base. It is important that both the evidence sought to be relied upon and the manner in which arguments are made are capable of standing up to considerable scrutiny. In order to do this the evidence needs to be analysed with an even hand, stepping into the eyes of the judge in any proceedings and objectively critiquing the merit of evidence submitted.
The act of simply presenting volumes of evidence without adequate explanation is unlikely to bear fruit. The best way to disclose evidence in any proceedings brought involves a careful consideration of the evidence relied upon accompanied by a detailed rationale behind those points in dispute. It can work in the provider’s favour to acknowledge those points where it is accepted that failings have existed whilst focusing the mind on elements of positive practice.
On occasion regulators have been known to embark on criminal action which falls below the criminal threshold of beyond reasonable doubt. This is, with good reason, a high bar to meet for the regulator owing to the gravity of consequential action that follows successful prosecutions. The corresponding standard of proof for civil enforcement action is on the balance of probabilities which is a lower bar to achieve. It is important to keep these two thresholds in mind in all dealings of a regulatory or criminal nature.
Due to the extremity of the action that is at the disposal of civil enforcement, at its highest level the closure of provider, some might be surprised that the threshold is not at the same level as those actions that attract criminal charges. It is important to hold the regulator to task on the relevant threshold with a focus on those criminal actions which appear to only meet the lower threshold. Indeed reducing the burden to the civil standard in regulatory/ disciplinary proceedings is a relatively new development. The public were no longer accepting of a position where wrongdoers were perceived to escape censure on what some saw as a technicality.
Often, if faced with substantial breaches of regulations and/or criminal sanctions providers are faced with a do or die situation. Where possible, it is important to get out ahead of this scenario whereby the livelihood of the provider of care is under threat. Whilst the bespoke knowledge of care delivery will invariably lie with the provider it is important to obtain legal advice when seeking to make representations to the regulator to give the provider an effective voice in their interactions with the regulator.
Always remember that the basic rule is the party that asserts must prove. It follows that the regulator’s response:- “We could not be satisfied that…” is never sound. That is simply not evidence which proves anything.
Taking an honest and frank consideration of the providers position is crucial to determining the points which are open to serious challenge before responding to any proposed litigation. Solicitors, once instructed, can undertake a thorough review of evidence and translate the provider’s expertise into well thought out representations in support.