If you are faced with a CQC criminal investigation into you or your service it is vital that you take prompt action. The CQC is becoming heavier handed in the fines that it dishes out to providers. Furthermore, the fact that some offences are punishable by imprisonment and that criminal enforcement action is likely to have a reputational impact on you and your business, any indication that the CQC is conducting a criminal investigation, should be taken seriously. In this article I consider CQC’s criminal enforcement powers, how the CQC uses its powers and action providers can take.
CQC’s criminal enforcement powers
The CQC has a range of both civil and criminal enforcement powers. The CQC uses its Enforcement Policy and Enforcement Decision Tree to decide the enforcement power that it will use based on the seriousness of the breach. Requirement Notices, Warning Notices and suspension of, cancellation of and imposing/varying/removing conditions of registration are the CQC’s civil enforcement powers. Cautions, fixed penalty notices and prosecutions are the CQC’s criminal enforcement powers.
There are a number of prosecutable offences in the Health and Social Care Act 2008 and related regulations (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“Regulated Activities Regulations”) and Care Quality Commission (Registration) Regulations 2009). Based on the CQC’s published list of prosecutions to date, the breaches that have been prosecuted include:
- Regulation 12 – Safe Care and Treatment
- Regulation 13 – Safeguarding
- Regulation 20 – Duty of candor
- Regulation 20A – Failure to show CQC rating on website
- Section 10 – Carrying on a regulated activity without being registered
- Section 64 – Failure to provide information
The most common breaches that have been prosecuted is Regulation 12 (of the Regulated Activities Regulations) – Safe Care and Treatment. In order for the CQC to prosecute for a breach of Regulation 12 (and Regulation 13 – Safeguarding and Regulation 14 – Meeting nutritional and hydration needs), it must prove that the breach resulted in avoidable harm to a service user or a service user being exposed to a significant risk of such harm.
How the CQC uses its criminal enforcement powers
The CQC must have regard to the Code for Crown Prosecutors which sets out general principles to be applied when making decisions about prosecutions. The Code requires the CQC to decide whether to prosecute after completing a two-stage test. Stage one – whether there is a realistic prospect of conviction based on the evidence. Stage two – it is considered to be in the public interest for the CQC to use its powers of prosecution.
At an early stage in the prosecution process, the accused will be given an opportunity to enter a plea of guilty or not guilty. A lot of providers facing prosecution tend to plead ‘guilty’ early on which results in a third being discounted from any fine imposed by the Court. It is unlikely this trend will reduce, given that prosecutions are on the rise and data shows that fines have been increasing over the years. Figures show that compared to pre-pandemic (2017 – 2019), CQC prosecutions have increased by 50% post-pandemic (2020-2022), rising from 30 to 45. Furthermore, the average fine is now in excess of £550,000 compared to £160,000 pre-pandemic, amounting to a 242% increase.
When applying sentencing guidelines, the Court will base fines 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. Heavy fines and reputational damage from the prosecution itself can greatly affect a provider’s ability to maintain its business. However, individuals can also be seriously affected. For a Section 10 offence, the Court can impose a sentence of up to 12 months imprisonment. There has been only one case where imprisonment was imposed. That was a case back in 2015 in which eight months imprisonment, suspended for 18 months, was imposed for a Section 10 offence.
Action providers can take
Usually the CQC will write to the provider notifying them that it is investigating a breach and will be considering prosecution. Act quickly and seek legal advice upon receipt of such a letter. Sometimes, in these letters the CQC is requesting information. Therefore, early action and a careful approach is required. Known for a heavy reliance on unsubstantiated anonymous allegations and the pursuit of prosecutions on an insufficient evidence base, CQC requests for information may be a fishing expedition which can result in the information shared with the CQC being used against you.
Whilst a response can prevent Court proceedings or at least limit the impact of prosecution, likewise a response could directly lead to prosecution. Providers must be clear about their position and the grounds on which information is being sought. For example, the CQC can require information in the form of section 64 request, and it is a criminal offence to fail to respond without reasonable excuse. In such a case, don’t withhold information unnecessarily, instead, know what information you are providing and supplement it with an explanation where necessary.
Police and Criminal Evidence Act 1984
Where the CQC suspects a criminal offence, information and evidence should be obtained in line with the Police and Criminal Evidence Act 1984 (“PACE”) and its code of practice. There will be the option for a PACE interview under caution, or to submit a written response, or a refusal to respond. There are risks in going to interview if you cannot persuade CQC of your innocence as the information provided by the provider at interview is usually what leads to conviction. The approach to take is completely case dependent. Our legal team are well equipped to advise providers based on their individual case.
As mentioned, at an early stage the provider can plead guilty or non-guilty. With our support a provider can also consider the strength of their case and whether the accusations can be defended. For prosecutions brought based on breaches of Regulations 12, 13 and 14, Regulation 22(4) provides a defence if the provider can prove that they took all reasonable steps and exercised due diligence to prevent the breach. The burden of proof is on the accused to prove a defence, which is not an easy task in cases were harm occurred.
This article touches on the surface of some of the pertinent issues relating to CQC prosecutions. If you are facing a CQC prosecution or are at an early stage where you are aware that the CQC is conducting a criminal investigation, seek legal advice. A prosecution may not be avoided but you can explore your position at an early stage to protect you and your business.
Our lawyers can be contacted on 0207 317 0340 or firstname.lastname@example.org.