Ridouts Solicitor, Nythan Smith, offers advice on challenging criminal prosecutions brought by the CQC.
CQC has the ability to prosecute providers criminally for breaches of certain regulations with the one most commonly used being the failure to provide safe care and treatment (Health and Social Care Act 2008 (Regulated Activities Regulations 2014: Regulation 12); but in addition harm or risk of harm must be proved.
Prosecutions that progress through to a formal trial remain relatively rare, and there have only been 14 since the start of 2020. Of those prosecutions 12 defendants pleaded guilty to the offence. There may have been many reasons that a decision was taken to plead as they did but the reduction in sentence by a third for making such a plea is likely to have played a factor.
When a provider submits a guilty plea to a criminal charge it is an acceptance by the provider of the offence which it is charged with and the only challenge that remains is to the sentence that is to be passed down by the Court.
It is notoriously difficult to challenge criminal prosecutions that are brought in relation to breaches of regulations. For example, focusing on Regulation 12, under which the majority of prosecutions are brought, the regulation relates to the risk of harm arising from unsafe care and doing all that is reasonably practicable to prevent any such risk. Regulation 22 (4) of the same Regulations provides the defence to the offence to prove that they took all reasonable steps and exercised all due diligence to ensure safe care was provided. Here the burden of proof is on the accused. This is a high bar to meet.
CQC will bring prosecutions on breaches of Regulation 12 likely following evidence of harm having occurred within a service (an injury or a death perhaps) and this makes it difficult to defend as the harm has occurred as such it is often difficult to prove that all steps in mitigation have been taken.
An assessment of a provider’s position is important at the outset to consider whether a provider has sufficient grounds upon which a challenge can be made. Instructing lawyers to perform that initial assessment prior to any formal charge being made can help providers navigate the next steps involved both in challenging any potential charge that may follow and advising on what the best course of action might be to protect a provider’s position in the future.
CQC must consider when using its powers the prospect of conviction and whether it is in the public interest to use its powers. Given that the court has the ability to issue unlimited fines it is crucial that responses to CQC are sufficiently detailed and address any and all concerns raised at the earliest opportunity with the ambition being to dissuade CQC from the opinion that criminal prosecution is the appropriate method of holding a provider to account. It is likely that the facts of the offence will be made so a defence will need to show good evidence of due diligence in management.
CQC alleges breaches of its regulations to providers regularly (with breaches of a number of regulations attracting criminal sanctions), and often in the use of its civil enforcement powers which are included in its letters of intent, inspection reports and Notices of Proposal/Decision to vary, cancel and impose conditions on providers often with wanton abandon.
We would urge providers to challenge alleged criminal breaches that appear outside of formal prosecutions as above with as much rigour as if they were being formally prosecuted to trial. Irrespective of whether those alleged breaches manifest into formal prosecutions disproving the evidence which underpins the alleged breach will go some way to challenging CQC’s held opinion of you as a provider.
Formal criminal prosecutions may be on the rise in the near future with CQC taking particular note of providers’ adherence or lack thereof to infection control measures in light of the pandemic. An increase in formal prosecutions may follow from the easing of restrictions. With some cases taking in excess of three years to be brought to trial it is conceivable that a backlog of cases is waiting to be brought against providers.
It remains to be seen if CQC going down the route of criminally prosecuting providers en masse is actually in the public interest or whether employing civil enforcement presents a better option for the regulator in meeting its regulatory functions. CQC’s strategy more broadly does seem to be aligned more readily to civil enforcement but the critical point here is what may prove acceptable for the public won’t necessarily ring true for individual providers who may see themselves on the wrong end of a potential prosecution.
Providers must be clear about their position and consider the grounds on which information is being sought by CQC. Any information shared with CQC could reasonably be considered as the foundation upon which a potential future criminal prosecution might be based. This is not to say that providers should withhold information from CQC without good reason but understanding what it is that is being shared is important to understanding what your position might be in respect of the information that is being shared.
It would be unwise to simply provide information without understanding what is being shared and with an accompanying explanation to the CQC at all times. Whilst CQC retains the right to request information from health and social care providers and it is in itself a criminal offence to obstruct CQC in the performance of its duties they are required to act in line with the Police and Criminal Evidence Act 1984 and its code of practice when gathering evidence where a criminal investigation is suspected.
Further in making a decision as to whether a criminal charge is to be brought recourse to the Code for Crown Prosecutors 2018 must be consulted prior to a decision being made which involves CQC asking a series of questions based on the evidence related to a potential charge and whether the public interest test is met- essentially is the charge that is brought proportionate to address the concerns raised by the alleged conduct of the suspect to hold said suspect to account.
At Ridouts we have defended providers faced with criminal prosecutions brought by CQC to formal trial stage and at all stages leading to trial and we are well versed in protecting our clients’ interests in this regard. Being wise to the potential risks involved in responding to CQC assessments in respect of breaches of the regulations which attract criminal sanctions is important.
Providers should consider whether it has evidence to challenge any suggested breaches in any communications received by CQC. Be alert to the fact that the Police and Criminal Evidence Act protects you when there are criminal investigations. You do not have to accept interviews under caution. The interview is often the very evidence that convicts!
Only go to interviews if you believe you can persuade CQC of your innocence. Of course if a decision is taken that by CQC to mount a criminal prosecution legal advice should be sought but it should also be sought at all stages and interactions with CQC prior to such a decision being made. This is not to say that such prosecutions will be avoided at all times but it is important for health and social care providers to explore your options in defending any charge as may materialise at the earliest possible stage to protect your business. Prevention is better than cure.
If you require assistance or advice responding to the CQC, you can contact Ridouts at firstname.lastname@example.org or by calling 0207 317 0340.