Recommendation 87

Care Quality Commission powers of prosecution

Accepted in principle
The Health and Safety Executive is clearly not the right organisation to be focusing on healthcare. Either the Care Quality Commission should be given power to prosecute 1974 Act offences or a new offence containing comparable provisions should be created under which the Care Quality Commission has power to launch a prosecution.

The Care Quality Commission is the right organisation to focus on healthcare, investigate and act where patients have been seriously harmed because of unsafe or poor care.  Investigation of such incidents can give early warning of more widespread management failure.

The Government recognises that, although the Care Quality Commission is able to prosecute providers, directors and unincorporated associations under the Health and Social Care Act 2008, in practice there have been few prosecutions. This suggests that the Care Quality Commission’s approach to enforcement needs to be strengthened. The Department of Health is developing revised requirements for registration with the Care Quality Commission to include fundamental standards that will enable prosecutions of providers to occur where patients have been harmed because of unsafe or poor care, without the need for an advance warning notice.  This will ensure that the current regulatory gap identified in the Inquiry report is filled A new start – Consultation on changes to the way CQC regulates, inspects and monitors care set out plans to introduce fundamental standards which will enable the Care Quality Commission to take more effective action, including prosecution, where there are clear failures to meet basic standards of care. On 17 October 2013, the Care Quality Commission published the responses to the consultation in A new start: Responses to our consultation on changes to the way CQC regulates, inspects and monitors care services, which showed that there is broad agreement with the new approach.

The Department of Health is also working with the Care Quality Commission and the Health and Safety Executive to ensure that the Health and Safety at Work Act 1974 and its relevant statutory provisions will continue to be used by the Health and Safety Executive where it provides for the most specific breaches. Given the Health and Safety Executive’s more limited role for patient safety, the Care Quality Commission and the Health and Safety Executive will together develop and agree criteria and handling arrangements for the matters that the Health and Safety Executive will investigate.

The Care Quality Commission and the Health and Safety Executive have a published a Liaison Agreement, which describes how the two organisations currently work together. This will need to change to reflect the revised registration requirements, the Care Quality Commission’s role, the criteria for matters which the Health and Safety Executive will investigate, and the mechanism for referral. The Care Quality Commission and the Health and Safety Executive will ensure that this is done in line with the implementation of the revised registration requirements.

The Health and Safety Executive will support the Care Quality Commission in developing its role in investigating and prosecuting in cases of unacceptable care. The Department of Health will work with the Department of Work and Pensions and the Health and Safety Executive to ensure that Health and Safety Executive has the necessary capacity to support the Care Quality Commission.

Update

Regulations will introduce new fundamental standards of care as requirements for registration with the Care Quality Commission. These will allow the Care Quality Commission to take robust action against providers that do not deliver an acceptable standard of care, including prosecution. The Care Quality Commission produces ratings of the quality of care ranging from outstanding to inadequate to provide service users with a fuller picture of the quality of care available. Regulations have been introduced for ratings from October 2014 and fundamental standards for health and adult social care provision in April 2015.