Care Quality Commission (CQC) investigations and prosecutions

Martha Odysseos considers what criminal enforcement powers the Care Quality Commission (CQC) have and how they are used 

The CQC has the power to prosecute health and social care providers in England. This includes the power to prosecute individuals as well as organisations and, in some cases, includes those who are not registered with the CQC.  

In addition to prosecution powers, the CQC has other criminal enforcement powers which includes the power to issue fixed penalty notices or simple cautions.  

CQC Enforcement Powers 

The CQC use a structured decision-making process to consider selecting appropriate enforcement powers.  The enforcement criteria take account of CQC’s duty to protect and promote the health, safety and welfare of people who use regulated health and social care services.  They also consider the need for CQC to hold registered persons to account for breaches of regulations.  

The CQC will take into account the seriousness of the breach and whether or not there is evidence of multiple and/or persistent breaches. This considers the potential impact on people using a service and the number of people affected.  

Usually, the CQC will consider any civil enforcement before going on to consider criminal enforcement action.  

How do the CQC decide whether to prosecute? 

Decisions on criminal enforcement will take place following a review of the 2-stage test set out in the Code for Crown Prosecutors. 

1. Whether there is sufficient evidence for a prosecution and  
2. Whether taking criminal enforcement action is in the public interest.   

Under what legislation do the CQC prosecute?

If a decision is made to prosecute, the CQC can prosecute under the following regulations: 

• Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, 
• The Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2015 and   
• Care Quality Commission (Registration) Regulations 2009. 

Though not every breach of these regulations may lead to a prosecution and the CQC do have the power to take regulatory action other than prosecution in relation to breaches of certain regulations.  

What types of offences are the CQC likely to prosecute in relation to? 

Some examples of offences for which the CQC could proceed with a criminal prosecution are: 

1. Carrying out a regulated activity without registration  
2. Failing to provide safe care and treatment resulting in avoidable harm or a significant risk of avoidable harm 
3. Failure to safeguard people from suffering any form or abuse or improper treatment while receiving care and treatment  
4. Failure to establish systems and processes and operating effectively to prevent abuse of service users 
5. Failure to meet nutritional and hydration needs

Whilst the number of prosecutions brought by the prosecution remains relatively low, they are undoubtedly a pro-active regulator and so it may be that enforcement action and prosecutions in relation to regulatory breaches will continue to increase steadily in the coming months and years.  

How can Olliers help with a CQC investigation or prosecution? 

If you are facing a CQC investigation or prosecution, it is of utmost importance that you contact a specialist regulatory defence firm.  

At Olliers we have extensive experience of representing those under investigation by regulatory bodies and can represent you in relation to an interview under caution, drafting a written response or representing you at court, if matters get to that stage.