CQC’s chief executive, Ian Trenholm announced his intention to bring more prosecutions of health and social care providers for breaches of the fundamental standards.  The numbers mooted at the time of that interview in early November 2018 were interpreted by some as alarming and certainly headline grabbing within the sector:  Potential prosecutions of 161 adult social care providers and 31 NHS organisations.  CQC has employed a number of ex-military and ex- police officers to review the evidence that is gathered to help increase both the number and likelihood of success in bringing more prosecutions.

Interestingly in this interview the chief executive made the concession that it did not matter whether this increased appetite for prosecutions resulted in more losses for the regulator as this was effectively the cost of doing business within the sector.  For providers this could be interpreted as a lowering of the standard of proof required to bring about prosecutions which is likely to see those cases which lingered close to the boundary of “will they, won’t they” prosecute, fall firmly into the camp of providers that are prosecuted.  It is a bold step from the former police officer, who most recently held the role as chief of the Blood and Transport Authority.  With the changing of the guard we are likely to see a more emboldened and focused regulator who seeks to pounce when failings have been identified.

Even Ian Trenholm’s appointment at the helm of CQC is highly indicative of CQC’s new approach.  It reflects the soundings that we have heard already within a number of consultations on CQC’s strategy of targeting under-performing providers of care.  As with many things it will take some time for this strategy to trickle down into bringing prosecutions against providers of health and social care.  CQC has faced criticism historically about the veracity of its evidence base that is used to justify its courses of action which can ultimately lead to prosecution.  Clearly CQC’s new policy of bringing in individuals trained in gathering evidence acknowledges that CQC has been deficient in this area to date and is seeking to improve.

It is important for providers to acknowledge that they too may have been deficient in gathering evidence to rebut claims made by CQC.  Providers too need to smarten up their approach to having evidence in the first place which demonstrates good practice.  Providers need to bolster their own defence teams in any event to ensure that they have a team in place to dissuade CQC from taking regulatory action. The provider should be a cooperative provider who is invested in engaging with the process from the outset who also defends its position where required.  Gathering and presenting evidence is a skill which is developed through experience.  Whilst equipping a provider with the proper advisors to mount a challenge to CQC’s prosecutorial intentions it is not a guaranteed way of staving off potential enforcement action, but it certainly gives the best opportunity for providers to defend their livelihoods against the well-resourced and newly focussed regulator.

CQC’s intention to refocus its efforts on bringing about prosecutions brings into perspective the importance for providers of ensuring their record base is formidable.  Irrespective of how the latter stages of a prosecution plays out it is likely to involve significant disruption to a service, both operationally and financially.  The best form of defence is to present evidence which challenges the findings of CQC at the earliest opportunity.  For example, if CQC is contemplating a criminal prosecution in relation to health and safety breach of it will usually seek to gather evidence in relation to the incident in question.  It is important that providers treat this initial communication with the care and attention that one should treat the formal prosecution of a provider.  Providers might respond in a cursory manner, simply providing what is requested without the application of foresight into any such communications.

Given CQC’s new stance to more thoroughly prepare evidence to bring about prosecutions if there happens to be an element of doubt as to a potential breach of regulation by a healthcare provider it is likely to find itself being prosecuted.  Much like CQC improving its gathering of evidence providers too should ensure that they have the right team, experienced in gathering and presenting evidence to provide the best chance of mounting a successful defence to any prosecutions brought by CQC.

The ultimate priority for healthcare providers should be ensuring that they are providing healthcare that is compliant with the Regulations.  If this is the baseline upon which a healthcare provider holds itself to, it is likely to be in a good position to defend any potential CQC prosecution that is brought.  Providers would be minded to ensure that they have a team in place which is experienced in working with the CQC when they come knocking.  CQC claims that it has improved its prosecution team, providers too should be able to make the same claim in responding to prosecutions that are brought.