CQC reveals 'alarming' new route to prosecute directors

The regulator’s ability to pursue NHS directors personally over organisational breaches of the fundamental standards regulations came to light when it recently decided to prosecute a care home manager using a combination of legislative powers dating from 2008 and 2014. 

The fundamental standards were introduced in 2014 as part of the government’s response to the Mid Staffordshire care scandal. The standards include sanctions such as fines for breaching the duty of candour and delivering unsafe care, but apply only to provider organisations.

The CQC can, however, prosecute individuals under section 91 of the Health and Social Care Act 2008. This section, which was aimed at enforcing offences related to registration, includes a specific clause making clear that if the corporate failure was committed with the consent or actions of “any officer or member” of an NHS body or local authority or a “director, manager, secretary or person purporting to act as such” then they too are “guilty of the offence and liable to be proceeded against and punished accordingly”. 

As the 2014 regulations amended the 2008 legislation, the powers in section 91 can also be used to prosecute individuals for failings of the fundamental standards regulations. 

The regulator is using these extended section 91 powers for the first time to prosecute a care home manager for their role in the home breaching a fundamental standard on safe care. A jury inquest concluded the home was guilty of neglect which contributed to 19-year-old Sophie Bennett, who had mental health problems and autism, taking her own life in 2016.

The CQC confirmed HSJ’s interpretation of section 91 was correct but added it would need to be proven “the individual concerned had committed or connived, or consented” to actions which led to the fundamental standards being breached.

‘Ringing alarm bells’

Paul Ridout, managing director and partner at Ridouts law firm, told HSJ he believed this to be the first prosecution under section 91, but the CQC’s approach meant directors could be found liable “if the levels of culpability are established”.

He added: “When you start tinkering about with legislation without considering the primary legislation because there isn’t Parliamentary time, then you often get unforeseen consequences that people have missed out things.

“People will be shocked and horrified at this.”

He said the CQC’s actions could lead to more clinical challenge of board decisions and their impact on care. But he also warned that the CQC’s tendency to prosecute was bad for the NHS and could lead to “defensive medicine”.

Philippa Doyle, partner at Hempsons law firm, said she found the CQC’s use of the legislation “alarming” and warned it could make people more reluctant to take on board-level positions.

She added: “This is something new that people were not aware of. It is ringing alarm bells for me. I don’t think this is anything our NHS clients are aware of.

“Trusts are going to need to carry out careful examinations, more so than ever before, about the quality of directors on their board and the freedoms those directors have. The levels of auditing and reporting are going to have to be even tighter than they already have to be.”

She continued: “In the last year the CQC [has] been flexing [its] muscles far more and using powers [it has] had for a long time and never used. All of a sudden, we are seeing a massive increase in prosecutions and letters to providers threatening prosecution.”

The CQC’s response

A CQC spokeswoman said: “It is correct that CQC has the power to prosecute any officer or member of an NHS body on the basis set out in section 91 but only if it is first proven that an offence has been committed by the corporate body – ie: the provider.”

She said evidence would need to prove without doubt that the individual “had committed, connived, or consented to actions which led to the offence being committed”.

She said the regulator could not comment as to whether it would seek to prosecute NHS directors under section 91 as each case would be determined by the offence and the weight of evidence.

HSJ asked the Department for Health and Social Care if it was content with the CQC’s use of the legislation but it declined to comment.