As a series of prosecutions have indicated £1 million plus fines could become the norm for care home providers. Jonny Landau, partners of legal practitioners RadcliffesLeBrasseur, explains why and offers advice on risk management.
A new sentencing guideline for Health and Safety and corporate manslaughter offences was introduced, applying to all sentences passed after 1 February 2016, regardless of the date of the offence.
It provides guidance to sentencing courts at setting fines based on culpability, harm and the size of the organisation. For the highest level of culpability, harm and organisation size (turnover of £50 million or more), the starting point is a fine of £4 million, with a category range between £2.6 million and £10 million.
In recent weeks, one care home operator was fined £1.5 million and another group £1.6 million for health and safety offences that led to deaths in 2012. Those are both far higher than the norm before the guideline was introduced.
There have also been an increasing number of prosecutions for corporate manslaughter, including the first successful prosecution of a care home operator, as well as the introduction of a new offence of provider neglect.
Finally, a Memorandum of Understanding (MOU) was agreed between CQC, HSE and local authorities in respect of services registered by CQC. The signatories agreed that CQC would be the lead authority for inspection and enforcement in relation to incidents related to service users.
Whilst the MOU came into force in April 2015, there was a lag before the first conviction due to the time necessary to investigate and prosecute under the care standards regulations (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014). Indeed, the first conviction by CQC under the MOU was in September 2016, but related to an accident in April 2015, just days after the MOU came into effect. In that case, the fine was £190,000. Before April 2015, the maximum fine for care standards offences was £50,000. It is now unlimited.
Given that CQC has been given this role, it seems likely that it will meet the task and increase its activity in criminal enforcement. We are certainly seeing an increase in the number of interviews being carried out by the regulator. It also seems likely that sentencing courts will apply the new Health and Safety guideline when sentencing in respect of CQC cases.
In short, there are likely to be more prosecutions, fines are unlimited, and sentencing guidelines and recent cases suggest that fines topping £1 million will become the norm.
For providers, these developments require managing the risks effectively both before and after accidents occur. Before the event, it is vital that providers are doing everything reasonably practicable to manage risks. That includes keeping up to date with known risks, ensuring systems are in place to manage them, training and supervising staff, and ensuring that there are effective audits in place to monitor compliance with these steps. Commissioning external contractors to conduct audits and provide advice is also useful, but is not a substitute for the other steps.
When things do go wrong, immediate action must be taken to mitigate the risks. Remedial action should be taken where needed, both to protect against repeat occurrences, and to help minimise fines in the event of conviction. Prompt legal advice is also required to ensure that internal investigations are covered by legal privilege, and the provider and staff are supported in any external investigation by the police or CQC. It is important to note that in some cases (but not all), there is a legal duty to cooperate with the investigation and breaching that may itself be a criminal offence. Other advisors, such as insurance brokers and PR consultants, should also be involved from the outset.