August 9, 2019 Legal

Is an increase of prosecution powers a reflection of the state of care?

By Amina Uddin, Ridouts 

Ian Trenholm, the Chief Executive of CQC, seems to have kept to his word about increasing the use of CQC’s prosecution powers.
CQC’s annual report, published on 23 July 2019 shows statistics covering various types of enforcement such as cautions and warning notices to penalty notices and prosecutions. The statistics show a sharp rise in CQC taking criminal enforcement action; 211 criminal enforcement actions were taken against providers in comparison to 159 in the previous year.
CQC have stated that it has continued to strengthen its approach to enforcement to ensure that it takes decisive action to protect people using health and social care services.
The statistics show that CQC issued 2,206 civil enforcement actions in 2018/2019 in comparison to 2,283 actions in 2017/2018.
CQC’s enforcement powers enable it to bring prosecutions against failing providers. The starting point for considering use of all enforcement powers is to assess harm/risk of harm to people using services. CQC asserts that it will only take action where it is proportionate and where a provider has breach a condition of registration or fundamental standards.
In its annual report, CQC have cited that through its inspections and other enforcement action, it has encouraged providers to make improvements. CQC reinforce this information by showing that in 2018/19, 53% of services previously rated as requires improvement, improved on re-inspection, and 74% providers previously rated as inadequate, had made improvements.
It is common knowledge that the media coverage of the health and social care is largely negative. Issues arising out of cases such as Winterbourne view and most recently Whorlton Hall, have resulted in public outcry. And rightly so. Inevitably, the public want answers as to what went wrong and how the regulator did not identify signs of abuse during its inspections and various other methods of information gathering. During such times, it is only foreseeable that the regulator will look to instilling public confidence through taking tougher action against failing providers. But is this a fair approach? Are the increased criminal prosecution actions a reflection of the current states of the sector?
To answer such questions, one does not have to look that far. Regular headlines highlight funding crises and staff shortages in the sector, with approximately four in ten care home workers leaving their job posts each year.
The government is due to publish a green paper on funding of social care, however, this has been repeatedly delayed for the past two years.
The sector is having to navigate a number of obstacles. In light of this, is it justified for CQC to increase its prosecution powers against a sector which is already facing a deluge of problems?
Statistics show that the number of serious injuries in care homes has almost doubled since 2011, with 43,594 reported incidents in 2018, in comparison to 23,709 seven years before. However, what these numbers do not show is how these serious injuries occurred. It most certainly does not mean that most care homes are unsafe, simply that reporting has improved.
CQC’s website provides updates as to the ratings of the care services they have inspected; 79 care services are currently rated as outstanding, 577 are rated as good, 239 as requires improvement and 79 have been rated inadequate.
These figures indicate that the majority of care services provide good care to the people, as CQC have deemed that up to 656 care services are either providing good or outstanding service to the people it supports. This does not reflect a failing sector, but one which is working hard to prioritise the people it supports.
It is CQC’s duty to investigate and take the appropriate enforcement action where standards fall short. However, CQC should ensure that its enforcement action is proportionate. At times, strict enforcement action may act as a deterrent for others, however, in such a climate, it is better to work collaboratively with providers to ensure that people receive safe care. Of course, where there are serious failings in care, the registered persons should be held accountable for its failings. To prosecute on past failings, which are not reflective of current practices is not a proportionate approach to criminal enforcement action. It is hoped that the culture of blame in the sector changes to one where the regulator and provider work together to enable a system whereby protecting people is at the forefront of the actions it takes.

 

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