It was recently reported that the Care Quality Commission (CQC) prosecuted the registered provider of a residential care home for people with physical and learning disabilities, and those with acquired brain injuries for a failure to provide safe care and treatment.
A failure to provide safe care and treatment resulting in avoidable harm (whether of a physical or psychological nature) or a significant risk of exposure to avoidable harm is a criminal offence contrary to Regulations 12 and 22 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. You can defend a prosecution for this offence if you can establish, on the balance of probabilities, that you took all reasonable steps and exercised all due diligence to ensure safe care and treatment was provided. If found guilty of this offence, the Magistrates Court have the power to impose an unlimited fine and the fine is determined by a number of factors including the level of culpability and harm, as well as the company’s turnover or an individual’s income.
In a press release issued by the CQC on 1 October 2021, it is reported that the registered provider pleaded ‘guilty’ at Cirencester Magistrates Court and was ordered to pay a fine of £460,000 plus the CQC’s legal costs of £35,000 and a victim surcharge of £170. This was a total of £495,170.
It is reported that the CQC was informed that the service would be closing following an inspection of the service in 2017 which saw it rated as ‘inadequate’. However, around a month following this inspection, it is reported that one service user (referred to as ‘VDC’) had physically assaulted two agency care workers and had locked themselves in another service user’s room (referred to as ‘LM’) and physically assaulted them, leaving them with life changing facial injuries.
It is stated that VDC was locked in the room with LM for around 30 minutes but the agency staff were unable to obtain entry to the room. It is confirmed that there should have been a permanent member of staff on duty at the time, but they had not shown up for work. The agency staff did not know where the bedroom codes/keys were kept and could not reach the on-call manager for support. The CQC submitted that the registered provider’s failure to properly assess the risk of being unable to obtain access to a locked bedroom led to this violent assault.
This case demonstrates that the CQC will take criminal enforcement action to hold providers to account for serious breaches, even where a provider no longer intends on operating a service. It further demonstrates that the fines issued in CQC prosecution cases can be significant and in some cases, can be detrimental to the future of a registered service. Not only do these unlimited fines place a significant financial burden on registered providers, which impacts their ability to invest in and maintain a service, they can also cause irrefutable damage to a provider’s reputation.
The CQC’s head of inspection for adult social care commented on this case as follows:
“This was a shocking case and I welcome the guilty plea […]. Regardless of whether a service is closing or not there is an expectation that it must provide the standard of care people have a right to expect, with right levels of staffing at every available opportunity.
People had every right to expect safe care […] and in this case the provider has failed LM in its specific legal duty to protect them and other residents from being exposed to a significant risk of harm. It has also failed in its duty of care to the agency staff working at the service.
The majority of care providers do an excellent job. However, when a provider puts people in its care at risk of harm, we take action to hold it to account and protect people.
I hope this prosecution reminds care providers that they must always ensure people’s safety and manage risks to their wellbeing.”
What should I do if I am facing a criminal prosecution by the CQC?
If you are subject to a criminal investigation by the CQC or you are facing a CQC prosecution, it is vital that you seek specialist legal advice immediately. Early action and a measured and careful approach to the investigation, and any response made, can limit the impact of a prosecution; or even prevent it from proceeding to court at all.
In any event, a response should only be made to the CQC, particularly where it is made under caution, after full consideration of the evidence against you. In addition, it is vital that anyone subject to a prosecution engages in the proceedings and is appropriately represented at court in order to protect their interests and reputation in the social care sector.