In December 2019, the Care Quality Commission brought its first prosecution against a local authority. Lorna Kenyon said the case demonstrates the importance of considering whether to admit or contest a prosecution at an early stage.
Health and social care providers registered with the Care Quality Commission ('CQC') have an obligation to provide safe treatment and care under regulation 12(1) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2015 ('the Regulated Activities Regulations').
The CQC can choose to prosecute a provider for breaching regulation 12 of the Regulated Activities Regulations if the breach results in the provider’s service users being exposed to avoidable harm or a significant risk of such harm.
On 1 October 2019, new general sentencing guidelines, which will apply to prosecutions brought by the CQC, were introduced. The new guidelines are similar to the Health and Safety Sentencing Guidelines, which since their introduction have seen a significant increase in the level of fines imposed. Relevant to this matter, providers who enter an early guilty plea will receive a reduction in their sentence of up to one-third.
Late last year, Derbyshire County Council were fined £500,000 for breaching their obligations to provide safe care and treatment.
The facts of the case
Derbyshire County Council operates the Grange Care Home in Eckington. Audrey Allen, a resident of the Grange, had a history of recurrent falls and, amongst other issues, dementia. On 25 March 2016, Mrs Allen suffered multiple rib fractures and damage to her lung after a fall. Staff had taken her to her bedroom following the fall but did not seek immediate medical advice. She died on 16 April 2016 due to her injuries.
On investigation, the CQC found that the council’s falls policy was out of date. Despite her previous falls, the council had not carried out an assessment of Mrs Allen’s care requirements and had not put in place measures to protect her. There was also found to be a shortage of senior staff at the Grange due to the internal staffing issues within the council.
Derbyshire County Council pleaded guilty to breaching regulations 12(1) and 22 of the Regulated Activities Regulations and was fined £500,000. It was also ordered to pay a £170 victim surcharge and costs of £5,124.
The judge hearing the prosecution commented that the fine would have been higher had Derbyshire County Council not entered an early guilty plea. As discussed above, a provider will receive a reduction of up to one-third for an early guilty plea; a key motivator behind this reduction is that it spares witnesses and the family from the upset and trauma of a full trial and having to hear the evidence.
Had Derbyshire County Council contested the allegations and been found guilty following a trial, the fine imposed could have been £250,000 higher. In any case, the likely impact of a guilty plea will need to be balanced against the strength of the prosecution case. The overall increase in fines imposed in cases of this type has made the consequences of this decision more significant.
Seeking early legal advice will assist a provider in forming a strategy for the prosecution and considering whether an early guilty plea is appropriate.