As all Providers will be acutely aware, the CQC has the power to criminally prosecute under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 where safe care and high quality treatment fails to be provided to a patient.
Since 2021, the CQC appears to have focussed their attention on the provision of maternity services; inevitably as a result of the numerous maternity scandals that have plagued the sector, and last week saw Nottingham University Hospitals Trust (the “Trust”) fined £1.2 million for failing to provide safe care and treatment to Mrs Sarah Andrews and her baby, Wynter Andrews.
This figure of £1.2million, before mitigation, is the largest fine imposed by a Court following a CQC prosecution brought in connection with maternity services.
Wynter Andrews was born in 2019 to Mrs Andrews at the Queen’s Medical Centre in Nottingham and died from a loss of oxygen to the brain 23 minutes after birth.
The CQC brought a prosecution against the Trust for breaches of Regulation 12 (Care and treatment must be provided in a safe way for service users) and Regulation 22 which makes it an offence not to comply with Regulation 12. The Trust admitted failing to provide safe care and treatment to Mrs Andrews and Wynter Andrews by virtue of not ensuring that adequate processes and systems were in place, and implemented, resulting in mother and baby being exposed to a significant risk of avoidable harm.
In order to successfully prosecute a Provider, the CQC is required to prove, to the criminal standard of proof (e.g. beyond reasonable doubt), that a Provider has failed to comply with the stipulated Regulation (in this case, Regulation 12) and such failure resulted in avoidable harm to a service user or the service user being exposed to a significant risk of such harm occurring.
During the sentencing hearing on 27 January 2023, District Judge Grace Leong sitting at Nottingham Magistrates Court determined that the Trust’s “catalogue of failings and errors exposed Mrs Andrews and her baby to a significant risk of harm which was avoidable, and such errors ultimately resulted in the death of Wynter and post-traumatic stress for Mrs Andrews and Mr Andrews.”
Accordingly, the Trust was fined £1.2 million in addition to £13,668.75 in costs and a victim surcharge of £181. Owing to the Trust’s early admissions, the fine was reduced to £800,000 and the Trust has been provided two years to pay the fine.
This is the second CQC prosecution brought in connection with maternity services – the first being against East Kent Hospitals University NHS Foundation Trust (“East Kent”) in 2021. In this matter, the CQC pursued a breach of Regulation 12 (Care and treatment must be provided in a safe way for service users) against East Kent for failing to provide safe care and treatment to Sarah Richford and her son, Harry Richford before and during labour at the Queen Elizabeth, the Queen Mother Hospital.
After pleading guilty, East Kent was fined £733,000 in addition to £28,000 in costs and a victim surcharge of £170.
These decisions not only demonstrate the CQC’s scrutiny of maternity services but also the benefit of pleading guilty, at the first available opportunity, when failings have been identified and become the subject of a CQC prosecution.
As evident from this recent case, fines can be reduced, in accordance with the sentencing guidelines to reflect such mitigation and this is particularly poignant (and advantageous) in CQC prosecutions where the Court can impose an unlimited fine.