Prosecutions – is CQC finding its feet?

Southern Health NHS Foundation Trust has become the sixth health and social care provider and the first NHS Trust to be prosecuted by the Care Quality Commission (“CQC”) for failure to provide safe care and treatment.  On 12 October 2017 the Trust was sentenced, and a fine of £125,000 was handed down (the Court’s starting point was £300,000), along with an order to pay £36,000 of court costs and a £170 victim surcharge.

The prosecution was brought after a patient, at one of the Trust’s psychiatric units, fell from the unit’s roof in December 2015 and suffered life changing injuries.  The same patient had climbed onto the roof in March 2012 and had nearly fallen.   The Trust had taken no action to prevent patients accessing the roof until April 2016 despite six other patients having accessed the roof since March 2010 and three more patients accessing the roof, following the December 2015 fall.

At the sentencing hearing District Judge Loraine Morgan noted that the remedial works had not been carried out by the Trust as no money was available.  She stated that if £300,000 had been spent remedying the issue in a timely manner then the injury and the prosecution could have been avoided.

The case highlights just how cash-strapped the NHS is but it is likely to have cost the Trust significantly more than £300,000 in legal fees, fines and costs, as well as personnel time and emotional well-being.  The level of fine took into account the Trust’s guilty plea and its financial situation, as well as the improvements the Trust had made to its management procedures.  However, the level of fine had the potential to be unlimited.

Interestingly, in all six prosecutions to date the providers (and in one case, a registered manager) have pleaded guilty to the charges.  Entering a guilty plea will result in a reduced fine – the earlier the plea the greater the reduction.  The level of fine is determined by reference to the Sentencing Council’s definitive sentencing guidelines which came into effect from 1 February 2016.  The level of fine is dependent on a number of factors, including culpability, likelihood of harm, mitigating and aggravating factors as well as the turnover of the provider – the higher the turnover, the higher the fine.  The fine has got to hurt.

Fines (and costs) imposed following CQC prosecutions have varied from £24,000 to £190,000.  The fines levied via CQC prosecutions to date have been small when compared to other sectors – think about Merlin Attractions being fined £5 million after an accident on a ride in June 2015 which resulted in two people losing limbs. The Sentencing Guidelines apply across all organisations and sectors, regardless of the prosecuting authority, so there remains the potential for large fines to be levied.

Perhaps the courts are reluctant to take money away from a sector already struggling to make ends meet but this has to be balanced against a need to deter providers from cutting corners or turning a blind eye to matters that could result in harm to people.  Providers must be responsible and must ensure they have systems in place to pick up concerns and rectify them before they become an issue.  Of course, CQC do not always get it right and sometimes they rely on bullyboy tactics by bandying about words such as “suspicion”, “criminal offence” and “prosecution” liberally in the hope that people will submit.  On the flip side, providers do not always get it right and should, where required, admit wrong doing.  However, this should not be done without a full and thorough review of the facts first.

CQC prosecutions started off tentatively with the first prosecution occurring in June 2016, however, the Trust is the fourth provider to be prosecuted in 2017 which suggests that CQC is finding its feet and becoming a more confident prosecutor.  Judging the quality of evidence gathered and relied upon by CQC when compiling inspection reports and warning notices this is rather terrifying however, the most interesting case will be the one where a provider pleads Not Guilty – then CQC’s mettle as a prosecutor will be really tested.

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