The Legal Framework and Implications of CQC Prosecutions of Care Homes

Introduction

The Care Quality Commission (CQC) is the independent regulator of health and social care in England, responsible for monitoring, inspecting and regulating services to ensure they meet fundamental standards of quality and safety. In April 2015, the CQC was given enhanced powers to prosecute breaches of certain fundamental standards under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Since 2015, there have been over 50 prosecutions of care providers; the key offence being prosecuted is the breach of Regulation 12 of the 2014 Regulations, for the failure to provide safe care and treatment. This fundamental standard is very broad and has resulted in a wide range of prosecutions for a large number of failings in care homes, such as falls, choking incidents, burns, assaults on other residents and pressure sores.

This article explores the steady increase in CQC prosecutions. In discussing this we will look at notable cases and the implications for care homes and their operators. Recently, the CQC introduced the single assessment framework (SAF), which marks a significant advancement in the regulatory landscape of health and social care in England. It is designed to create a unified approach to evaluating care quality, ensuring that all individuals receive safe, effective, compassionate, and high-quality care. It is highly likely that this could potentially identify significant breaches of fundamental standards of quality of safety from a risk-based perspective.

Legal Basis for CQC Prosecutions

The CQC’s authority to prosecute care homes is rooted in the 2014 Regulations, which are commonly referred to as the ‘fundamental standards’. These regulations set out the essential requirements that care homes must meet, covering areas such as safety, consent, governance, and care quality.

Key regulations under which the CQC can prosecute include:

1. Regulation 11: Care and treatment to be provided with consent (Penalty – fine not exceeding £50,000)
2. Regulation 12(1): Care and treatment to be provided in a safe way (Penalty – unlimited fine)
3. Regulation 13: Safeguarding service users from abuse and improper treatment (Penalty – unlimited fine)
4. Regulation 14: Meeting nutritional and hydration needs (Penalty – fine not exceeding £50,000)
5. Regulation 16(3): Compliance/responses summary to be provided to CQC within 28 days of request.
6. Regulation 17(3): Good governance (Penalty – fine not exceeding £2,500)
7. Regulation 20(3) & 20(5): Duty of Candour – notifying service user and meeting specific requirements (Penalty – fine not exceeding £2,500)
8. Regulation 20A: Displaying a rating (Penalty – maximum fine £100)

The breaches of these regulations can result in the CQC initiating criminal proceedings against registered providers or registered managers – effectively the care homes, their managers, or operators. The prosecutions must be brought within three years of the date of the offence. To date, CQC has been very slow to prosecute and their investigations often take over two years, causing great anxiety and stress for the care home providers. By seeking early legal advice, we at Keoghs can assist with a strategy to determine the best way to tackle the lengthy investigation, the potential prosecution, and the numerous requests for further documentation.

Prosecution Process

In order to secure a conviction, the CQC has to prove that the registered provider has failed to provide safe care and treatment which has resulted in avoidable harm or a significant risk of exposure to avoidable harm. The majority of cases brought by the CQC have resulted in death to the resident, but the second limb of the regulation indicates that they can also prosecute where there has been a “significant risk of exposure to harm”. The word ‘significant’ is not defined in the regulations.

In order to successfully defend the charge, the defendant would need to establish that they took all reasonable steps and exercised all due diligence to prevent the failure. So far, the majority of prosecutions have resulted from guilty pleas as these cases are really hard to defend due to the very high threshold. However, prior to the decision being made to prosecute there are a number of practical ways to discourage a prosecution. The single assessment framework means that inspectors will be continually inspecting a service much more frequently and without the need to cross the threshold – this could mean greater scrutiny, which therein could lead to an increase in prosecutions. It is crucial that care providers ensure that they comply with the fundamental standards, keep accurate and up-to-date records, stay up to date with legal and policy changes and seek specialist legal advice at the earliest opportunity.

The process for CQC prosecutions involves several stages:

1. Investigation stage: The CQC is heavily reliant on their inspectors to gather evidence during their inspections by utilising their section 64 Health & Social Care Act powers. At the latter stages, inspectors will conduct PACE interviews,  usually by letter, and obtain witness statements from care staff. The CQC relies on a wide array of resources when identifying cases to investigate, including referrals from the police, coroners and the HSE. When determining whether the threshold has been reached to commence an investigation, the CQC will consider its overarching objectives to “protect and promote the health and welfare of people who use health and social care services” under their section 3 duties.
2. Assessment of Evidence: The evidence will eventually be assessed by a CQC lawyer to determine if there is a prima facie case of a breach of the fundamental standards in accordance with the Code for Crown Prosecutors. If there is sufficient evidence, the CQC will then determine whether or not it is in the public interest to prosecute, considering factors such as the severity of the breach, harm caused, and the impact on the community.
3. Legal Proceedings: Prosecution cases are brought before a magistrates’ court, where evidence is presented, and the care home has the opportunity to defend itself. The majority of these cases have resulted in a guilty plea being entered by defendant care homes because of the significant reduction in sentence for an early guilty plea and the difficulty in proving their defence.
4. Trial or Sentence: If found guilty, care homes can face unlimited fines, and in severe cases, responsible registered managers can also face hefty fines. Additionally, the CQC can impose other civil enforcement actions, such as cancellation of registration. The substantial fines are determined by the culpability and harm factors and the second stage involves determining the size of the organisation from their annual turnover to reach a starting point for a fine. The court will then consider further adjustments within the category range for aggravating and mitigating features.

High-Profile Cases

Several high-profile CQC prosecutions illustrate the CQC’s commitment to enforcing care standards in a wide range of failures:

1. St Anne’s Community Services: In 2016, this nursing care home was fined £190,000 following the death of a nursing home resident with severe learning disabilities who broke his neck falling from a shower chair where the safety belt was not properly used.
2. Hillgreen Care Limited: In 2018, Hillgreen Care Limited was fined £300,000 after being found guilty of failing to protect residents from sexual abuse by another resident. The case underscored the importance of safeguarding measures in care homes and the CQC prosecuted the home under both Regulations 12 and 13.
3. Derbyshire County Council: In 2019, this was the first prosecution of a local authority which operated a care home. The female resident had dementia and died after suffering a fall. The council was fined £500,000 after it was found to have an out-of-date falls policy and they failed to adequately risk assess the resident, despite her having a history of falls.
4. Sentinel Health Care Ltd: In 2020, the care home was fined £150,000 after a 56-year-old resident died of Legionnaires’ disease. This is a significant case because previously the HSE would have investigated and prosecuted all suspected cases of Legionnaires’ disease. This is the first and only Legionnaires prosecution by the CQC.

The long-term consequences for care homes of a prosecution

The legal and financial consequences of CQC prosecutions are significant and serve as a deterrent against regulatory breaches. The key implications include:

1. Reputational Damage: Prosecutions often attract media attention, leading to reputational damage that can affect the care home’s ability to attract new residents and staff.
2. Financial Penalties: Fines can be substantial, impacting the financial stability of care homes and their ability to invest in their business.
3. Operational Impact: Legal proceedings can lead to additional scrutiny, operational disruptions, and in some cases, closure of the care home.
4. Compliance Pressure: The threat of prosecution encourages care homes to maintain high standards of care and governance, invest in staff training, and implement robust safeguarding measures.
5. Parallel Investigations: In addition to the CQC’s criminal powers, the providers in these cases are also likely to be facing an inquest and substantial civil claims from the service users and/or their families.

Care homes can take several measures to avoid prosecution by seeking early legal advice and by considering the following:

1. Regular Audits: Conducting internal audits/investigations to ensure compliance with the fundamental standards and seek feedback from staff, residents and their families as this can often be used to rebut any CQC assessment of quality statements.
2. Staff Training: Keeping abreast of new developments in the care sector and delivering continuous training to staff on care standards, safeguarding, and risk management.
3. Robust Policies: Implementing and regularly updating policies and procedures to address key areas such as infection control, medication management, and incident reporting.
4. Engagement with the CQC: Maintaining open communication with your CQC inspector and promptly addressing any issues raised during inspections.

Conclusion

While the consequences of prosecution can be severe, they highlight the importance of ensuring compliance and continuous improvement in practices and procedures within the care sector. We at Keoghs can assist by providing legal advice throughout the process by developing a case strategy if you are at threat of prosecution, by assisting with PACE interview responses and assisting with the trial or sentence process to ensure you avoid a potential prosecution or, alternatively, providing skilful mitigation to reduce the sentence.

For more information, please contact:

Bena Brown - Lawyer

Email: BABrown@keoghs.co.uk