In recent years, the Care Quality Commission (CQC) has adopted a more confident stance in the enforcement of health and safety breaches in the health and social care sector. Since 2018, the CQC has been designated as the lead enforcement regulator of safety and quality of treatment and care matters, which involves patients and service users in receipt of a health or adult social care service from a registered provider.
This article gives insight into the Health and Safety Executive’s (HSE) and CQC’s memorandum of understanding, identifies a number of trends in the successful prosecutions brought by the CQC in recent years and considers what healthcare providers can learn from this.
The Health and Safety Executive, and in some instances local authorities (LAs), are the enforcement bodies responsible for health and safety matters involving patients and service users who are in receipt of a health or care service from providers not registered with CQC. The HSE/LAs are also the lead inspection and enforcement bodies for health and safety matters involving workers, visitors and contractors, irrespective of registration.
The HSE and the CQC issued an updated memorandum of understanding (MoU) in March 2024. In this MoU, it is set out that the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 are broad in their concept of the duty to provide care and treatment in a safe way and it states that an enquiry or investigation will generally commence with the CQC.
Instances where the CQC may revert to the HSE/LA or cases where CQC decide to jointly investigate with HSE/LA, this may include cases where the service provider is not registered or there may not be a regulated activity taking place or that CQC does not have applicable legislation or sufficient powers to take action.
The MoU explains that whilst there is specific health and safety at work legislation which is enforceable by the HSE, such as regulations relating to the control of asbestos, work at height and lifting operations and lifting equipment, it should generally be the case that CQC can adequately enforce using their legislation without needing recourse to specific legislation. In a limited number of cases CQC may exhaust its enforcement powers and may look to HSE/LA for support.
Considering the scope of CQC’s enforcement powers, it is notable that over the past five years, the number of successful prosecutions brought by the CQC has increased year on year with 17 convictions in 2020 to 24 in 2023. In the five months to the end of May 2024, defendants were convicted of 12 breaches, suggesting that the upward trend is continuing.
Coupled with the increased criminal enforcement of breaches of the regulations, the criminal courts are also increasing the financial penalties issued to convicted defendants. Whilst not a linear increase, the average fine in 2020 was £46,127.47, which increased by some 360%, to an average fine of £167,740.74 across the period 2021 to 2023.
Looking at those organisations convicted, NHS trusts were prosecuted on 10 occasions since 2020, meaning that the majority of prosecutions and convictions were brought by the CQC against private providers of registered services. The vast majority of convictions, over 70%, were in respect of a breach of Regulation 12, the duty to provide safe care and treatment. This emphasises the CQC’s statement within the MoU that the scope of the duty to provide care and treatment in a safe way with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 is broad and it can adequately enforce using their legislation, without needing recourse to specific legislation, such as specific health and safety regulation.
Moving forwards, with its joint working partnership with the HSE renewed, providers should be under no illusions that the CQC is ever more confident in its capability to successfully prosecute where it considers a breach of the regulations is sufficiently serious and where it is in the public interest to do so.
Registered providers should ensure that their systems and procedures for the management of safety risks, both in respect of patients and service users receiving treatment, and in respect of staff and contractors, are robust meeting the requirements of the regulations and applicable guidance.
For more advice on compliance with health and safety and health and social care regulations, contact our business risk and regulation team.
