Criminal investigations and prosecutions by the CQC
Allegations of carrying out personal care without registration
Our specialist lawyers represented an individual who was prosecuted by the CQC for carrying out the regulated activity of personal care pursuant to Section 10 of the Health and Social Care Act 2008. Our client was providing domiciliary care to approximately 11 elderly service users in their homes and had employed three care staff to assist in providing this care.
Our client entered a guilty plea at the first opportunity at the Magistrates’ Court and our CQC defence lawyers were subsequently instructed to assist with the sentencing hearing. By way of mitigating circumstances, our client had vast experience in the care sector, having worked as a carer for many years as well as a manager of a care home prior to starting this domiciliary care service. Our client had also not experienced any previous complaints or concerns from service users; GPs or the local authority nor was there any evidence that any harm had been caused to any service users throughout their career and evidence was further provided to demonstrate our client’s compliance with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. In addition, submissions were made to the fact that our client had been genuinely unaware of the registration requirements and had unknowingly committed this criminal offence.
Whilst our client did initially apply for registration with the CQC during these proceedings, our client later took the decision to cease employing any care staff and began providing the care directly to service users themselves, which brought them outside the scope of CQC registration.
In line with the sentencing guidelines, our client was at risk of receiving an unlimited fine; a term of imprisonment not exceeding 12 months; or both. At the sentencing hearing, taking into account our client’s reduction in income and providing maximum credit for an early guilty plea, the Magistrates’ Court imposed a fine of £1,600.00.
The CQC sought to recover costs in excess of £6,200, however, the court limited these costs to a sum of £4,500 and a victim surcharge totalling £160.00 following our submissions on our client’s financial circumstances; health; and ability to pay.
Allegations of failing to notify the CQC of specified incidents (DoLS authorisations)
Our specialist lawyers represented a care home provider who had received a letter from the CQC alleging that they had grounds to suspect that our client had committed the offence of failing without delay to notify the commission of incidents specified in Regulation 18(5) of the Care Quality Commission (Registration) Regulations 2009. It was alleged that, during a comprehensive inspection, CQC inspectors found that there were six people who were subject to a DoLS authorisation, which had not been notified to the CQC.
Our specialist lawyers submitted a detailed and robust written response to the CQC on behalf of our client, supported by the appropriate evidence and submissions in respect of the CQC’s prosecution criteria. Following the consideration of our submissions, the CQC determined that there was not a realistic prospect of conviction in this case and therefore decided to take no further action against our client.
Allegations of failing without delay to notify the CQC (allegations of abuse)
Our specialist lawyers represented an adult social care provider who had been accused of committing the offence of failing without delay to notify the commission of an incident specified in regulation 18(2) of the Care Quality Commission (Registration) Regulations 2009. The CQC alleged that four incidents had occurred at the service, which gave rise to allegations of abuse and the CQC had not received a statutory notification in respect of these incidents.
Our lawyers submitted detailed representations to the CQC, querying the need for a statutory notifications in respect of some of the incidents and acknowledging the reasons why other notifications were not made. Substantial mitigation was put forward, including evidence of the safeguarding procedures in place at the service; the Registered Manager’s substantial experience and training; and the service’s positive compliance and inspection history. It was further submitted that there would be no real public interest in pursuing any further action this provider in all the circumstances.
After considering these representations, the CQC confirmed that they would not be taking any further action as they were satisfied that the provider was complying with Regulation 18(2) and it would therefore not be in the public interest to pursue a prosecution.
Allegations of providing personal care without registration
Our specialist lawyers represented the directors of a homecare agency, who had been assisting with and supervising the provision of physical and domestic activities for vulnerable adults.
Upon applying for registration as a service provider with the CQC, our clients were invited to attend an interview under caution as the directors of the company. The CQC alleged that the agency had been providing the regulated activity of ‘personal care’ without the appropriate CQC registration. It was alleged that the agency were therefore committing a criminal offence contrary to Section 10 of the Health and Social Care Act (HSCA) 2008.
Following our representation at the interview under caution, and further written submissions, the CQC decided to take no further action against our clients and the homecare agency was subsequently registered as a service provider with the CQC.
Allegations of carrying out surgical procedures without registration
Our specialist lawyers represented a doctor who was being investigated by the CQC for carrying out the regulated activity of ‘surgical procedures’ without registration contrary to Section 10 of the HSCA 2008. The doctor had been operating a private clinic from the medical centre at which he was a partner. The medical centre was registered as a service provider with the CQC.
The CQC discovered the doctor’s private clinic during a visit to the medical centre to carry out an unannounced inspection. The doctor had mistakenly believed that the clinic was covered by the medical centre’s registration. However, the CQC advised the doctor that they were carrying out a regulated activity which required individual registration. The doctor therefore submitted an application for registration in respect of that separate regulated activity immediately.
The CQC commenced a criminal investigation against the doctor and invited the doctor to an interview under caution. Following our representation at the interview and subsequent written submissions, the CQC issued the doctor with a fixed penalty notice for £4,000. This avoided a criminal prosecution and the doctor therefore did not receive a criminal record. The CQC also approved the doctor’s registration in respect of this regulated activity.
Allegations of failing without delay to notify the CQC of specified incidents
Our specialist lawyers represented a care home provider who had received two letters from the CQC alleging that they had grounds to suspect that our client had committed two offences. The first offence was failing without delay to notify the commission of incidents specified in regulation 18(5) of the Care Quality Commission (Registration) Regulations 2009, namely that they had failed to notify the CQC of four separate incidents in which four residents sustained injuries, such as fractured hips and head wounds. The second offence was failing without delay to notify the CQC of the death of a service user under regulation 16 of the 2009 regulations. It was alleged that our client had failed to notify the CQC of nine service user deaths over a period of ten months.
Our specialist lawyers submitted a written response to the CQC on behalf of our clients, admitting the offence and putting forward the appropriate mitigation, together with robust submissions on why a prosecution was not proportionate or in the public interest in this case. Following the consideration of our submissions, the CQC decided not to prosecute our clients and instead, issued our client with a fixed penalty notice of £1,250 in respect of each offence.
Civil Enforcement Action
Notice of proposal to refuse registration
Our specialist lawyers represented a specialist independent provider of services for adults with learning disabilities and associated developmental impairments, who had made an application to the CQC to register as a service provider of the regulated activity: accommodation for persons who require nursing or personal care. It was their intention to provide accommodation for up to six people in a community setting (rather than a hospital setting) to those with learning disabilities in crisis.
Following the submission of their application, the CQC issued them with a notice of proposal to refuse their registration. One of the grounds for this refusal was that this service had been developed as part of a ‘campus style’ development or congregate setting, rather than a small local community-based setting with its own staff and separate facilities. The CQC stated that this was in direct contravention of its own guidance, “registering the right support”, as well as other publications such as, ‘The Mansell Report’ (October 2007) and The Department of Health report, “Transforming care: A national response to Winterbourne View Hospital” (December 2012).
Our lawyers were instructed on behalf of the company to draft detailed representations against this Notice to invite the CQC not to adopt their proposal and instead, register the service. Our representations sought to apply the relevant guidance; case law; definitions; and reports to demonstrate that the proposed service did not constitute a campus style or congregate setting and provide evidence of the extensive involvement of service users and their representatives in the design of the service. After consideration of these representations, and recent case law on this matter, the CQC agreed to register the company to provide this regulated activity.
Notice of proposal to cancel registration
Our specialist lawyers represented a provider of residential accommodation for people with learning disabilities, who had been issued with a Notice of Proposal to cancel their registration as a service provider under section 26(4)(a) of the HSCA 2008 in respect of the regulated activity: ‘accommodation for persons who require nursing or personal care’.
The CQC alleged that it had identified a number breaches of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 during an inspection and found that the provider had ‘failed to take reasonable steps to address those breaches’ at a subsequent focused inspection.
The provider had 28 days to make representations against the notice of proposal. Our lawyers made careful and detailed representations on the provider’s behalf, persuading the CQC to review the position of the service once the provider was able to implement the improvements outlined in their updated action plan, with the assistance of a specialist care consultant.
The CQC agreed to our proposal and inspected the service around three months later. Having noted significant improvements within the service at that inspection, the CQC agreed to withdraw their notice of proposal and the service’s registration was allowed to continue without restriction.
