November 21, 2017

CQC steps up criminal prosecutions

Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 requires that care or treatment is provided in a safe way. It is a criminal offence for healthcare providers not to comply with Regulation 12 where this results in a significant risk of or actual, avoidable harm to service users. The maximum penalty for an offence of this nature is an unlimited fine.

You can defend prosecutions under Regulation 12 if you can establish, on the balance of probabilities that you took all reasonable steps and exercised all due diligence to ensure safe care and treatment was provided.

What's happened so far?

Since enforcement responsibility passed to CQC, there have been seven prosecutions, the last two of which were concluded on 12 October and 19 October 2017. To date, all of the providers prosecuted have pleaded guilty meaning there has not yet been a full contested trial.

Southern Health NHS Trust

On 12 October, Basingstoke Magistrates Court heard the prosecution against Southern Health NHS Trust, the first CQC prosecution against an NHS provider. The case related to Melbury Lodge, an acute inpatient psychiatric unit.

CQC's prosecution submitted that despite three inspections of the service, all of which cited issues and potential risks associated with access to the roof of the building, safety measures were not implemented to minimise risks to service users. Evidence was presented to the court that there had been seven occasions where patients had climbed onto the roof, including an incident involving a patient named as Mr AB in March 2012. He was subsequently re-admitted to the service three years later, and on 3 December 2015 Mr AB managed to get on to the roof of the building again and then fell, suffering severe injuries. Even after this, there were three more reported incidents where patients gained access to the roof.

The service was re-inspected in January 2016 and a warning notice was issued.

The Trust was sentenced to a fine of £125,000 for failing to provide safe care and treatment and putting people at risk of avoidable harm. It was also ordered to pay CQC's prosecution costs of £170,000 and a £170 victim surcharge.

Although severe, the Trust's sentence was significantly reduced having entered an early guilty plea which allowed them to benefit from the greatest reduction available under the sentencing guidelines. They also submitted evidence, including an inspection report from July 2017 to demonstrate that measures had been put in place to resolve the safety issues at the service. The Trust also submitted financial information to plead a proportionate sentence in light of its financial situation, arguing that a substantial fine would have a detrimental impact on its ability to provide its other services.

Elmwood Nursing Home

A week later, on 19 November, Camberwell Magistrates Court heard the prosecution against Elmwood Nursing Home in Croydon.

The prosecution was brought against the provider following an incident in January 2016 when an elderly resident was burned after sitting on a portable oil fuelled heater. Similar heaters had been deployed throughout the home which was experiencing problems with their central heating system. After discovering the burn while helping the resident into bed, staff failed to appreciate the severity of the injury or follow the service’s internal wound management procedure. The resident then experienced a fall the following morning and it was only after the paramedics attended was she referred to the hospital.

The resident's injuries were severe and required a lengthy hospital admission and surgery.

Evidence was heard from the heater manufacturer that use of the heaters was not appropriate for vulnerable people and that residents, many of whom suffered with dementia, were not appropriately supervised and protected from a significant risk of avoidable harm.

The provider was sentenced to a fine of £45,000 and had to pay over £14,500 in costs plus a victim surcharge of £150.

What does this mean for providers?

CQC's criminal enforcement powers are wide reaching and evidently becoming more widely used. We are starting to see threats to use them even in relatively mild situations, such as where there has not been a registered manager in place for six months.

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 seen this being used as an alternative to a warning notice in recent months. 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.

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