The Care Quality Commission is a prosecuting authority. Alongside its civil enforcement powers, it can investigate and prosecute providers, registered managers and, in some circumstances, directors for criminal offences under the Health and Social Care Act 2008, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Care Quality Commission (Registration) Regulations 2009.
Criminal investigations by a regulator can result in a tension between a natural desire to co-operate with the regulator and the legal right not to self-incriminate in a criminal investigation. Where there is sufficient evidence and public interest to charge an offence, a variety of non-court disposals may be an option if admissions are made. If it ends up in Court, large fines can be imposed and some offences are imprisonable.
Our team advises providers and managers from the first request for information through interview under caution to sentencing or trial. Understanding which breaches are prosecutable, what CQC has to prove and how that sits with the evidence, and what defences apply, is the foundation of a good outcome.
CQC’s criminal powers come from three sources: the Health and Social Care Act 2008, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Care Quality Commission (Registration) Regulations 2009. Not every breach of the regulations is a criminal offence.
In practice, the vast majority of CQC prosecutions concern Regulation 12 and unregistered activity. A smaller number of prosecutions are related to safeguarding, duty of candour, failure to display ratings and failure to notify CQC of deaths under the Registration Regulations. CQC must bring proceedings within three years of the date of the alleged offence and sometimes sooner.
A criminal investigation usually follows a serious incident, a safeguarding referral or an inspection finding. It typically moves through five stages:
An initial enquiry, often an email requesting documents and information about a specific incident.
A formal investigation letter stating that CQC considers a criminal offence may have been committed and inviting a response. How and whether you do reply needs careful thought.
An interview under caution. CQC serves a disclosure notice under the Police and Criminal Evidence Act setting out the suspected offence and why you are a suspect and invites you to interview ot to answer questions in written representations.
CQC may decide to take no further action, administer a caution or issue a Fixed Penalty Notice as an alternative to prosecution, or bring charges.
On a guilty plea, the case proceeds to sentencing, where the provider’s mitigation and the steps taken since the incident carry real weight. On a not guilty plea there is a trial.
For organisations the usual sentence at court is a fine, and for the principal regulatory offences there is no statutory maximum. Fines in CQC cases have ranged from a few hundred pounds to more than £2.5 million, with turnover a significant factor.
Individuals convicted of carrying on a regulated activity without registration can be imprisoned for up to 12 months, as well as fined. In practice, a fine is the normal outcome.
The regulations provide a defence to the harm-based offences where the registered person can prove that they took all reasonable steps and exercised all due diligence to prevent the breach. Establishing that defence depends on being able to evidence the systems, training, audits and oversight that were in place at the time, which is why governance records matter so much when an incident occurs.
A guilty plea entered at the first court appearance can attract a reduction of one third of the sentence, which is a further reason why early advice matters.
It may be the first stage of one. CQC uses information requests to decide whether to open a formal investigation. Take advice before responding so that the reply is accurate, complete and does not create difficulties later.
You are not compelled to attend and it is often possible to respond to questions in writing instead. Either way, the content of your answers can be used in evidence, so preparation with a solicitor is essential. Importantly inferences may also be drawn from what is not said or answered – if a Defence is later raised in Court that is not mentioned when questioned during an interview under caution.
Yes. Registered managers can be prosecuted for regulatory offences. In addition, Section 91 of the Health and Social Care Act 2008 allows for directors, managers and officers to be prosecuted where an offence by the organisation was committed with their consent or connivance or was attributable to their neglect.
An alternative to prosecution for certain offences, allowing the registered person to pay a set penalty within a set time. Accepting one avoids a court conviction but is a formal enforcement outcome that CQC records and may publish, so it should not be accepted without advice.
We represent providers and managers at every stage: responding to information requests and formal investigation letters, preparing for and attending interviews under caution, negotiating with CQC’s prosecution team over charging decisions and alternatives, and conducting the defence or mitigation in court. Where the same incident has triggered civil enforcement or a safeguarding process, we manage those in parallel so that nothing said in one undermines the other.
Our specialist health and social care team is led by Neil Grant, who has more than 30 years’ experience in the sector, including acting for regulators. The team acts for care homes, domiciliary care agencies, supported living providers, GP practices, dental practices, independent hospitals and clinics across England.
If you require advice on any aspect of CQC enforcement, please contact Neil Grant or Samantha Burges on 01483 451 900.
