CQC defence lawyers
CQC criminal prosecutions
The Care Quality Commission (CQC) can pursue criminal prosecutions against those found to be in breach of the Health and Social Care Act 2008 (Regulated Activities). A prosecution can be initiated without a warning notice being issued. To establish a meaningful defence, you’ll require expert legal representation.
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Can the CQC bring a criminal prosecution?
The CQC is therefore able to bring prosecutions against both care providers and individuals, should particular regulations be breached, as part of an enforcement action. Individuals can often include individual registered managers as well as the provider organisation.
What breaches can be prosecuted?
The CQC is able to bring prosecutions for breaches of duty under:
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014
- Care Quality Commission (Registration) Regulations 2009
Breaches of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 listed below may be prosecuted directly, without a formal Warning Notice being issued by the CQC.
A defence is available where the registered persons took all reasonable steps and acted with due diligence.
It’s important to note that it’s for the accused party to establish such a defence on the balance of probabilities:
- Regulation 11; need for consent
- Regulation 16 (3); receiving and acting on complaints
- Regulation 17(3); good governance
- Regulation 20 (2) (a); duty of candour
- Regulation 20(3); duty of candour
- Regulation 20A; requirement as to display of performance assessments
Breaches of the Care Quality Commission (Registration) Regulations 2009 below may also be prosecuted directly even when there has not been any exposure to harm nor is there a requirement for anyone to have been placed at risk of harm:
- Regulation 12; statement of purpose
- Regulation 14; notice of absence
- Regulation 15; notice of changes
- Regulation 16; notification of death of service user
- Regulation 17; notification of death or unauthorised absence of a person who is detained or liable to be detained under the Mental Health Act 1983
- Regulation 18; Notification of other incidents
- Regulation 19; fees etc.
- Regulation 20; requirements relating to termination of pregnancies
What is a Prosecution with Qualifications?
For the following Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, it’s required that the breach has resulted in people who use the service being exposed to avoidable harm or significant risk of such harm occurring, or suffering a loss of money or property as a result of theft, misuse or misappropriation.
- Regulation 12(1); safe care and treatment
- Regulation 13(1) to (4); safeguarding service users from abuse
- Regulation 14; meeting nutritional and hydration needs
What other criminal enforcement powers does the CQC have?
The CQC will take a number of factors into account, including gravity of incident, disregard for requirements of a person, potential for wider learning points and repeated breaches when considering whether to prosecute. They may alternatively decide to exercise another power, such as:
Fixed penalty notices
- Payment of a fixed penalty: There is no obligation to pay but if this is refused, other enforcement powers can be considered
- Failure to pay can lead to prosecution
- Multiple providers may be issued with fixed penalties where there are breaches across a sector
- If no improvement is made after payment, the CQC can commence prosecution proceedings
- Penalty notices will be considered when there’s sufficient evidence to bring a criminal prosecution, but it’s considered that improvements could be achieved and that lengthy proceedings are not appropriate
- A formal record of the offence is made and there is no obligation on the provider to accept the caution. However, prosecution will be considered if refused
- Simple cautions will be considered when there’s sufficient evidence to bring a criminal prosecution, but it’s considered that improvements could be achieved and that lengthy proceedings are not appropriate. Also, if the provider demonstrates that improvements can be made in a reasonable time or if the offence has had only a slight impact on service users
Can the CQC prosecute individuals?
Yes, the CQC can prosecute individuals, and will consider doing so under the following circumstances:
- If the offence has been committed with their consent or has been caused or can be linked to their neglect
- There’s accountability on the part of the individual
- It’s in the public interest
- The CQC can also cancel registrations for individuals
It goes without saying that the impact of a criminal prosecution on your business or employees can be significant.
Our team has extensive experience in providing advice and representation to individuals or organisations facing CQC criminal prosecutions. We’re also experienced in handling any unwanted media coverage that may present itself during this time.
This area of law and procedure is complex, and we would recommend you seek expert legal advice as soon as you believe there’s any possibility of a criminal prosecution by the CQC.
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