Care Quality Commission prosecution cases continue

CQC recently prosecuted an NHS Trust following its admission of guilt in respect of the care and treatment provided to three mothers and their babies. A failure to provide safe care to any service user could result in any provider facing prosecution and a significant fine, in this case £1.6 million.

For a CQC prosecution to be successful avoidable harm must have occurred or there must have been an exposure to a significant risk of harm. In this case, like many that CQC brings, the defendant pleaded guilty, so the trial involved an assessment of the level of fine which the court was to impose.

The court has to consider both the likelihood of harm and the seriousness of harm when assessing the level of any fine. However, an early plea of guilty in a CQC prosecution results in a significant discount in the ultimate fine of a third. This is a major incentive not to incur costs and limit the level of fine for a defendant. Providers should nevertheless consider the evidence carefully before making such a decision. CQC often relies on Regulation 12 (safe care and treatment). The potential defence to the offence of being in breach of Regulation 12 is that the provider took all reasonable steps and exercised all due diligence to prevent the breach. The standard to meet to run this defence is particularly high but not beyond reach.. Proper consideration of the position at the relevant time enables an informed decision to be made as to how to engage with CQC prosecutions, and the impact on reputation.

Even when a defendant pleads guilty, there is still the opportunity to plead in mitigation the extent of culpability on the defendant’s part and submissions are invited from both prosecution and defendant in order to assist the court in determining the sentence. Fines for public or charitable organisations should be reduced substantially if they can demonstrate to the court that the fine would have an impact on their services. Independent providers unfortunately do not benefit from a similar reduction.

There is a lot of data which points to a high success rate for CQC in bringing prosecutions. That data does not include those prosecutions that have been dropped owing to information provided by the potential defendant. Early advice is therefore essential as soon as any suggestion of prosecution is raised by CQC.