Chief executive of the Care Quality Commission Ian Trenholm explains the work the regulator is doing to explore potential prosecutions against NHS trusts and how the regulator is seeking to ensure lessons can be learned to drive systemic change.

In my interview with the HSJ, I was asked why, since the fundamental standards were introduced following the Mid Staffordshire NHS Inquiry in 2015, the Care Quality Commission had only prosecuted one NHS provider – Southern Health Foundation Trust – for not providing safe care. My answer is that across health and social care we have about 190 live investigations at the moment, the majority in Adult Social Care, the largest sector we regulate.

These investigations derive from things we have seen on our inspections, directions from coroners, and information from patients and their families. The investigation work in hospitals looks at the actions of boards, the so called “body corporate”, not the actions of individuals.

Relatively few investigations result in prosecutions as the circumstances and context of an initial report of an incident become clear – but all result in learning that we can feed back to individual organisations or the wider system. The investigation process is a complex one – so to help support our inspectors, we’ve put together a team of experienced evidence review officers.

Examples of areas we would review include deaths in circumstances in which a coroner has questioned whether there may be wider failings; patterns of unexpected deaths in a hospital and the continued treatment of people in breach of clearly stated restrictions on practice.

Patterns of behaviour

These are not single incidents but patterns of behaviour, or systematic failings that have resulted in serious harm or death – and prosecution will only happen at the end of a long road of enforcement action. In the case of Southern Health, for example, the trust ignored multiple warnings about the safety of its premises and a patient was seriously injured as a result.

In the rare cases where people receive care that results in harm or death that could have been avoided as a result of systemic failings, we have a duty to explore whether criminal prosecution is appropriate

We use our civil powers to ensure safer care for people every day. But in the rare cases where people receive care that results in harm or death that could have been avoided as a result of systemic failings, we have a duty to explore whether criminal prosecution is appropriate.

Many of the issues we are investigating under the powers we inherited from the Health and Safety Executive in 2015 are breaches of the fundamental standards. Of the 31 cases in healthcare across the NHS and independent sector that we are currently investigating I would expect very few to come to court – but our challenge as regulator is to use the tools at our disposal to ensure that people are not harmed again in the way they were at Mid Staffs.

As we highlighted in State of Care, most people are getting good, safe care, and this is an enormous testament to the hard work of everyone who works within the NHS and social care. We will continue to work closely with providers to focus on encouraging improvement and sharing best practice – and the number of times we highlight good practice will continue to outweigh the enforcement action we take.

Prosecution is not about scapegoating individuals. It is about ensuring that where boards and leadership teams have not acted on repeated warnings, and there has been unsafe care that results in harm, there are consequences.

The investigation work we do as part of our responsibility to explore potential prosecutions ensures that where things have gone wrong, lessons can be learned and used to drive systemic change, organisations held to account if appropriate – and ultimately, that care is improved as a result.