The Care Quality Commission would need to increase its standards of proof if it is to make use of new powers to bring criminal prosecutions as proposed in the Francis report, lawyers have warned.
The long-awaited report recommends the CQC takes on powers from the Health and Safety Executive to prosecute cases raising health and safety issues and is given strengthened powers to prosecute for breach of standards.
Gerard Hanratty, a partner at Capsticks, told HSJ the introduction of more criminal sanctions would mean that the standard of proof of “beyond reasonable doubt would apply in using them”. He said this was a “higher level of proof” than the civil law standard of balance of probabilities which applies to most sanctions currently used by the CQC.
Corinne Slingo, healthcare regulatory partner at DAC Beachcroft, warned the CQC “would have to be very mindful of criminal standards of proof when making their judgements” and would need more prosecution expertise to implement both of these recommendations.
HSJ understands the CQC regularly receives challenges from organisations’ legal advisers to the factual accuracy of its inspection judgements from trusts and social care providers. A recurring complaint is the reliance on a small, randomly selected group of patients and staff from which to draw conclusions on quality.
Mr Francis concluded the HSE was “clearly not the right organisation to be focusing on healthcare”. He called for the CQC to be given powers to prosecute either under the Health and Safety at Work Act or by some other statute as well as powers to prosecute for the breach of a “fundamental standard”.
Currently the CQC has powers to prosecute if a trust fails to comply after being issued with a warning notice. Mr Francis cited the case of diabetic Gillian Astbury, who died at Mid Staffordshire after nurses failed to give her insulin, as an example of where the CQC had not been able to prosecute because it had not issued a warning notice.
“While criminal sanctions should be regarded as the last resort, their effective absence in healthcare provision means that an opportunity to focus minds on the importance of applying at least minimum standards, and being able to demonstrate this, is being lost,” he wrote.
The inquiry heard that during most of the period it was considering − from 2005 to 2009 − the HSE was the only organisation with powers to prosecute trusts. While a trust could be prosecuted if a patient death was due to a faulty trolley it could not if it was due to poor patient care, witnesses from the HSE said.
Ms Slingo told HSJ there were clear advantages in having health specialists looking at health and safety issues rather than HSE inspectors. She added: “There is merit in it as a principle, but my concern would be whether too much is going to end up within the CQC remit.”