Care home briefing 187 – A new code for prosecutors

What general factors will the CQC, HSE, the police and other regulator prosectors consider when contemplating charging an organisation or individual?

The CQC and other bodies who have power to prosecute follow guidance issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985.

On 24 October 2018 the DPP issued revised guidance for prosecutors considering charging decisions.

General principles

A prosecutor must act fairly and objectively and be ‘even handed’ in their approach to prosecuting cases. A prosecutor is not required to determine guilt or innocence but does have to be satisfied that there is sufficient evidence to charge a suspect.

How will the CQC decide whether to prosecute?

Prosecutors must decide whether there is sufficient reliable and credible evidence to prosecute. A prosecutor must be satisfied that there is sufficient credible evidence to provide ‘a realistic prospect of a successful conviction’. In the past, the test was a 51% chance of conviction but that criteria has been replaced by a broader test, i.e. whether a court is more likely to convict on the charge laid before the court.

In addition, prosecutors are required to consider:

  1. Whether a prosecution is in the public interest
  2. The defence case, and whether there may be a defence
  3. The quality of the evidence
  4. The seriousness of the alleged offence by reference to, amongst other things, the vulnerability of the victim and the culpability of the person or organisation who committed the breach or offence
  5. Whether a prosecution will adversely and significantly affect the victim
  6. Conversely, a prosecutor should take into account the views of a victim and their family (who may wish a prosecution to be brought)
  7. Whether the offence affects the wider community or may cause harm in the future – if so that is a factor which supports a charge, and
  8. Whether a case can be disposed of by offering an ‘out-of-court’ settlement

If a prosecution is commenced can it be stopped?

Once a decision to prosecute has been taken, a prosecutor must keep that decision under review and take account of any changes in prosecution or defence circumstances. Prosecutors have wide power to discontinue a prosecution, but these are rarely exercised in practice.

Can a decision not to prosecute be reconsidered?

Yes and can encompass cases such as one where a coroner has reviewed all of the evidence and reached an adverse coronial conclusion. Healthcare providers and others should have in mind that under the concordat there is a requirement by the police, regulators, safeguarding teams and coroners to share information of concern. Thus an earlier decision not to prosecute can be reviewed following an inquest.

What steps might an individual or organisation to take to protect its interests?

Where there is a concern that there may be a prosecution by the CQC (under the Health and Social Care Act 2008 and the 2014 Regulations), the police (for ill-treatment or wilful neglect under the Criminal Justice and Courts Act 2015) or by another regulator, it is prudent to obtain early legal advice.

The CQC is bringing ever greater numbers of prosecutions. A successful prosecution may obviously have wide ranging implications such as:

  • fitness of provider
  • loss of good character
  • impact on commissioner tendering
  • impact on future registration applications
  • the finances of the organisation as a result of the need to pay a fine and prosecution costs
  • renewal insurance premiums and, of course,
  • significant damage to a hard earned reputation

For more information please contact Andrew Parsons, Head of Healthcare Providers, or Paul Spencer of Serjeants’ Inn Chambers.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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