Caroline Barker, Director of solicitor Ridouts Professional Services Plc, examines whether CQC prosecutions are on the rise.
Southern Health NHS Foundation Trust has become the sixth health and social care provider and the first NHS Trust to be prosecuted by CQC for failure to provide safe care and treatment. On 12 October 2017 the Trust was sentenced, and a fine of £125,000 was handed down, along with an order to pay £36,000 of court costs and a £170 victim surcharge.
Interestingly, in all six prosecutions to date the providers (and in one case, a registered manager) have pleaded guilty to the charges. A guilty plea will result in a reduced fine – the earlier the plea the greater the reduction. The level of fine is dependent on a number of factors, including culpability, likelihood of harm, mitigating and aggravating factors as well as the turnover of the provider – the higher the turnover, the higher the fine. The fine has got to hurt.
Fines (and costs) imposed following CQC prosecutions have varied from £24,000 to £190,000. These have been small when compared to other sectors – think about Merlin Attractions being fined £5m after an accident on a ride in June 2015, which resulted in two people losing limbs. The same sentencing guidelines are used across all organisations and sectors, regardless of the prosecuting authority, so there remains the potential for large fines to be levied.
Providers must ensure they have systems in place to pick up concerns and rectify them before they become an issue. Of course, CQC do not always get it right and sometimes they rely on bullyboy tactics by bandying about words such as “suspicion”, “criminal offence” and “prosecution” liberally in the hope that people will submit. On the flip side, providers do not always get it right and should, where required, admit wrong doing. However, this should not be done without a full and thorough review of the facts first.
CQC prosecutions started off tentatively with the first prosecution occurring in June 2016, however, the Trust is the fourth provider to be prosecuted in 2017 which suggests that CQC is finding its feet and becoming a more confident prosecutor. Judging the quality of evidence gathered and relied upon by CQC when compiling inspection reports and warning notices this is rather terrifying, however, the most interesting case will be the one where a provider pleads Not Guilty – then CQC’s mettle as a prosecutor will be really tested.