As the rollout of its new regulatory framework is delayed, Francesca Snape, associate at Markel Law, assesses the recent uptick in prosecutions pursued by the CQC, and what this might tell us about its approach to enforcement under the new framework.
The Care Quality Commission (CQC) announced wholesale changes to its regulatory framework in 2022. The rollout of the pilot scheme commenced in August 2022, with a view to a full rollout in 2023. The rollout has been subject to various delays, however, and the CQC has stated that it is now expected to begin the rollout of its new assessment approach “later in 2023”. Although an exact date has not yet been specified, there are steps that organisations can take to prepare.
As well as uncertainty around the timeframe of the planned changes, questions remain concerning how the CQC will approach assessments under the new framework. In recent years, however, a trend has emerged around the CQC’s increased focus on its prosecution powers. Is this likely to inform the body’s approach to enforcement action under the new framework?
What are the CQC’s prosecution powers?
The CQC has powers to prosecute providers for offences set out in the Health and Social Care Act 2008 and associated regulations. Providers will already be familiar with these regulations, as these are the standards they are currently inspected against. If the CQC identify breaches of regulations, this can lead to a poor inspection outcome, or enforcement action.
Breaches of some regulations can also amount to a criminal offence, for which the CQC can prosecute. These are:
- Regulation 11 – Need for Consent
- Regulation 12 – Safe Care and Treatment
- Regulation 13 – Safeguarding
- Regulation 14 – Nutrition and Hydration
- Regulation 16 – Receiving and acting on complaints
- Regulation 20 – Duty of candour
- Regulation 20A – Failure to show CQC rating on website
- Section 10 – Carrying on a regulated activity without being registered
- Section 64 – Failure to provide information
There are also some offences that can lead to prosecution under the Care Quality Commission (Registration) Regulations 2009, including failure to notify the CQC of changes, deaths of service users, other incidents, or absence of registered managers.
Which offences are most often prosecuted?
Based on data published on the CQC’s website, the offence that most commonly leads to a prosecution is a breach of Regulation 12 – Safe Care and Treatment. In general, these prosecutions relate to a one-off serious incident, but there will often have been a catalogue of incidents in the lead up to it and a failure to put in place preventative measures.
Most prosecutions before 2016 were for the offence of carrying out regulated activities while unregistered, which is contrary to Section 10. There is still a number of these offences being prosecuted, but prosecutions of Regulation 12 and other regulations, such as Regulation 14, have increased significantly.
Are prosecutions on the rise?
According to the CQC’s data, there have already been 16 successful prosecutions in 2023. In 2022, there was 17 prosecutions in total. This shows a marked increase from the seven prosecutions carried out in 2018 and 2017, and the three carried out in 2016. It is clear that the CQC is increasingly utilising its powers of prosecution.
From 2016 onwards, there was a clear shift in the numbers of prosecutions for breaches of Regulation 12. This suggests that the CQC’s appetite to prosecute for serious incidents increased – either instead of, or alongside, other enforcement action such as cancellation of registration.
In addition to an increase in the number of prosecutions, it is also clear that there is an upward trend in terms of the average fines being issued as a result of these prosecutions. In 2016, the average fine was approximately £80,000. This is compared with the average fine in 2022, of £169,000. These figures relate solely to the fines; they do not take into account victim surcharge payments or prosecution costs, which can, in some cases, amount to £50,000 or higher. The average amount for fines, victim surcharges and prosecution costs combined for 2023 so far, is approximately £153,000.
Will the trend continue?
The CQC’s appetite to prosecute is likely to be buoyed by the growing number of successful prosecutions it has carried out in recent years, and by the escalation in fines being imposed. The rollout of the new assessment framework and inspection regime is unlikely to dampen that appetite, and it is clear that the CQC now has the resources and structures in place to bring effective prosecutions – something which may not have been the case in 2016.
The new framework provides for a “continuous approach” to regulation, with care providers utilising an online platform to share information on an ongoing basis with the CQC. This will, in theory, enable the body to assess information more efficiently and streamline its own decision-making processes, as less information gathering will be required as part of an investigation. If anything, this could further increase the number of prosecutions it pursues.
What action should care providers take?
It’s vital that providers seek legal support and advice in the event of a serious incident that could give rise to a criminal prosecution – particularly upon receipt of a notification from the CQC that it is investigating a criminal offence. Early legal advice could assist with mitigating any potential fines, which could become increasingly important given the rise in penalties.
Providers should also ensure that their insurers are notified of any circumstances giving rise to a claim, to ensure that the correct support is in place as early as possible.
