A recent example of civil sanctions imposed by the Care Quality Commission (CQC) gives an insight into the extent to which it is willing to pursue more stringent criminal enforcement procedures.
In the run-up to Christmas, CQC announced that it had issued a fixed penalty notice for £4,000 to Chase Lodge Health for failure to register to provide a regulated activity after it was discovered that a pregnancy termination had been conducted there.
Under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, certain procedures and types of service are listed as regulated activities; under section 10 of the Health and Social Care Act 2008 it is an offence to carry on a regulated activity without being registered in respect of that activity.
Chase Lodge Health runs Chase Lodge, a private hospital in Mill Hill. Chase Lodge was registered with CQC to provide personal care, treatment of disease, disorder or injury, surgical procedures and diagnostic and screening procedures. However, the termination of pregnancies is a separate regulated activity, and as such a separate registration would be required.
What is particularly interesting is that CQC chose to enforce its powers using a fixed penalty notice, rather than as a private prosecution through the criminal courts. Under section 10, carrying out a regulated activity without registration can be tried in the Crown Court, resulting in an unlimited fine and/or 12 months' imprisonment. However, section 86 allows the Commission to issue fixed penalty notices instead of prosecuting, and schedule 5 of the Regulations sets £4,000 as the amount for such a notice.
CQC's enforcement policy states that it will use fixed penalty notices when it has the evidence to prosecute, but a fixed penalty notice is more proportionate and will achieve improvements. In addition, it suggests that such notices will be used when "the offence has an insubstantial impact on people using the service". Here, the hospital was already registered for surgical procedures, so it may have been considered that patient safety was less at risk than in other situations.
A large part of the decision is likely to have been based on the time and expense of prosecuting. CQC would have brought a private prosecution (i.e. CQC acting as prosecutor in place of the Crown Prosecution Service). While normally private prosecutors could apply for their costs to be reimbursed from central funds, this is not available to public bodies. A prosecution would have taken far longer and required considerable expense in bringing it through the court system, particularly in a case where patient safety may not have been such a concern. The decision suggests that in general, unless there are clear and compelling reasons in favour of prosecution, CQC may consider that it can achieve its regulatory aims through civil enforcement procedures.
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