Posted by Nicola Radcliffe, Senior Associate
Care home prosecutions continue to rise
In April 2015, the Care Quality Commission (CQC) assumed responsibility for prosecuting providers for all health and safety related incidents. Four years on, we take a look at the situation, examine the trends and analyse the sanctions CQC has been applying.
When we last looked at the statistics and reported cases in 2017, the rise in prosecutions of health and social care providers by CQC was a clear trend.
The newly released CQC data for 2018/19 shows that, somewhat surprisingly, CQC enforcement actions are down from the previous year. There is an almost 4% drop in overall enforcement actions from 2,283 in 2017/18 to 2,206 in 2018/19. Figures also show, in the same period, a corresponding 2% decrease in CQC enforcement-related expenditure.
So has CQC grown weary of its prosecutor powers? Or perhaps fallen victim to its own cost-cutting measures?
Our indications are that neither assertion is particularly accurate. A closer look at the CQC data in combination with our own expert sector knowledge raises some interesting insights.
You’ve had your warning
Although CQC issued almost 20% fewer warning notices in 2018/19 compared to the previous year, they have instead been increasing the use of their civil and criminal enforcement powers. This is evidenced by a rise of 16% in civil and 33% in criminal enforcement actions. Criminal actions include prosecutions, cautions and fixed penalty notices. There were a total of 940 civil and criminal cases in 2017/2018, but this rose by a fifth to 1,117 in 2018/19.
Residential homes and NHS hospitals have been prosecuted for deaths, injuries and exposing service users to the risk of harm.
Hillgreen Care Limited
In a recent prosecution CQC brought a case against Hillgreen Care Limited for failing in its duty to protect people in its care – specifically for exposing them to the risk of sexual abuse. The case involved a resident, who was described as non-verbal and with limited mental capacity, being followed up to his room by another resident and, allegedly, raped.
The incident was reported to the police but, partly because of the alleged victim’s mental capacity and a lack of evidence, no prosecution ensued. The alleged perpetrator had been under the care of Hillgreen Care Limited for 10 years and was known to be a risk to both sexes with numerous historic allegations having been made against him.
An expert witness at the trial, Chartered Clinical Psychologist Dr Neil Sinclair, said that it should have been apparent that there was an extremely high risk of the alleged perpetrator committing sexual offences and that had he been monitored the alleged attack would probably never had happened.
The care home provider was fined £300,000 with District Judge Susan Williams remarking:
“There was a failure to provide appropriate care and a high level of culpability because the risks were well known to the company”
CQC were also awarded £141,000 in costs.
When CQC threatens sanctions
CQC appear to be substituting more traditional enforcement methods for civil and criminal sanctions. In the event of a threatened criminal investigation or threatened fine, you should take legal advice at the earliest opportunity, preferably from lawyers who know the sector. Before being interviewed under caution, you may be offered the opportunity to make representations to CQC in writing, and we have continued to see this being used as an alternative to a warning notice. The ramifications of your approach should be carefully considered before you go ahead.
In addition to CQC’s criminal powers, the providers in these cases are also likely to be facing substantial civil claims from the service users and/or their families as well as unwanted attention from the media.
You should consider all aspects and actively manage the situation to get the best outcome and seek legal advice at the earliest opportunity.
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