Care home briefing 103 – New enforcement powers for the CQC?
The Department of Health is considering making amendments to the Enforcement Powers of the Care Quality Commission (CQC). Its latest consultation suggests amending the currently available enforcement powers.
It is proposed that CQC can serve a statutory requirement notice in relation to a one-off breach of the regulations. This is different to the current position which only permits a Notice for ongoing breaches. CQC would therefore be able to take prosecution action in relation to any service failing, even if it had been rectified.
As with the current position, the care provider would be able to make representations to CQC as to why they should not prosecute. CQC will then take account of these representations and will also decide, in common with any prosecutor, whether prosecution meets the public interest test, namely that it is in the public interest to prosecute and there is sufficient evidence to make it realistic that a conviction may be obtained.
The criteria the CQC will use to bring this type of ‘one-off breach’ prosecution will be set out in the guidance in relation to enforcement action that it is required to issue under s.88 Health and Social Care Act 2008.
Further proposals have been made to amend the current defence provision in the regulations. Currently, it is a defence against the offence of failing to comply with the registration requirements for a provider or manager to prove that they took all reasonable steps or exercised all due diligence to ensure that the requirement was met.
Now, the Department of Health intends to change the defence so that a provider has to prove that it took all reasonable steps and exercised all due diligence to ensure that it complied with the registration requirements.
In addition to the obvious likely increase in the number of prosecutions, the proposed changes may have an additional impact: it seems to be proposed that the statutory requirement notice will be changed to make it plain that CQC may rely on breaches set out in such notices in civil enforcement action even if the provider has previously complied with the notice or CQC had decided not to prosecute at the time.
CQC has faced significant criticism in recent times for its regulatory record. These changes reflect an increase in regulatory action. It would therefore seem that providers are likely to face increased enforcement action and penalties including fines and, on occasion, cancellation.
 “Proposed changes to the regulations for CQC registration”, available at www.dh.co.uk
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP 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.