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Care Home Offences, Fundamental Standards and CQC investigations

wynne-crest-retirement-homeIt has been a busy year for the care industry following a number of changes to how businesses in the social care sector are regulated and the introduction of a number of new criminal offences. Our specialist care home solicitors run through the latest updates.

The Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 imposed new “fundamental standards” in the provision of social care with breaches more likely to result in enforcement action than with the previous “essential standards” which they replace. Care providers can no longer rely on notice be given of the CQC’s intention to take enforcement action and they are no longer required to issue a “warning notice” prior to commencing a prosecution.

In addition to the toughening of the CQC’s enforcement powers there are now 2 new criminal offences which will be investigated and prosecuted not by the CQC but by the police and Crown Prosecution Service. The most fundamental difference between a CQC investigation and a police investigation is that the police have the power to arrest a suspect and place them on bail pending the conclusion of their investigation.

An offence relating to individual care workers is introduced by Section 20 of the Criminal Justice and Courts Act 2015. Anyone found guilty of this offence is liable to up to 5 years imprisonment and covers instances where there has been ill-treatment or wilful neglect of an individual by a paid care worker.

It is not just the individual care workers responsible for the ill-treatment or neglect that are at risk of police investigation as Section 21 of the Act brings in a corresponding criminal offence for a care provider whose arrangements failed to prevent the ill-treatment or neglect from occurring.   If the failure amounts to a gross breach of the provider’s duty of care a criminal offence is committed. The maximum penalty for this offence is a financial penalty however apart from the adverse publicity that a criminal prosecution would bring the court have the additional powers to impose a remedial order and a publicity order.

Businesses providing social care need to alive to the fact that they may be at greater risk of prosecution and the lack of notice previously given means that action needs to be taken at an earlier stage to successfully defend a case.

If you or your business is under investigation by the Care Quality Commission or the police please contact our Business Defence Solicitors to discuss the matter.