Navigating Legal Responsibilities as A Care Manager Amid Increasing CQC Prosecutions
By Gareth Martin, partner and regulatory expert at leading criminal defence firm Olliers Solicitors (www.olliers.com)
The role of a care manager holds immense responsibility. From ensuring high-quality care to maintaining compliance with regulatory standards, the demands are significant. In recent months, there has been an uptick in prosecutions by the Care Quality Commission (CQC) against care providers. This escalation underscores the importance of understanding the legal responsibilities and potential consequences for breaches, as well as adhering to best practices.
Here, Gareth Martin explores potential areas of concern that could result in prosecution, a care provider’s legal responsibilities, and the consequences of breaches while offering advice on best practice.
The Role of the CQC
The Care Quality Commission (CQC) is the regulatory body responsible for monitoring and inspecting England’s health and social care services. Its remit includes care homes, dental and GP surgeries, NHS Trusts, and aesthetic clinics. The CQC oversees various elements, such as registration, inspection, and criminal enforcement.
The CQC’s power to prosecute stems from several legislative acts, most notably the Health and Social Care Act 2008 and the Health and Social Care Act (Regulated Activities) Regulations 2014.
Within the Acts, several critical provisions could lead to criminal investigation and potential prosecution, including:
Health and Social Care Act 2008
• Section 10 – Carrying on regulated activity without registration.
• Section 33 – Failure to comply with the condition of registration.
• Section 34 – Carrying on regulated activity while suspended.
• Section 76 – Disclosure of confidential information.
• Section 91 – Offences by bodies corporate (consent, connivance, neglect).
Health and Social Care Act (Regulated Activities) Regulations 2014
These regulations set out various offences that a registered person can commit. Notably, Regulation 22(2) deals with avoidable harm—whether physical or psychological—to a service user, which tends to attract significant media attention, such as the recent case of sexual assault in Warwickshire.
Other common breaches that may result in enforcement action include:
• Regulation 12 – Safe care and treatment.
• Regulation 13 – Safeguarding service users from abuse and improper treatment.
• Regulation 14 – Meeting service users’ nutritional and hydration needs.
• Regulation 16 – Receiving and acting on complaints – The Warwickshire case also involved the manager receiving complaints about what was happening but failing to take appropriate action to address them.
• Regulation 17 – Good governance.
When Might the CQC Prosecute?
The CQC’s enforcement policy aims to ensure consistency in prosecution decisions. It states that they will consider prosecution where there is evidence of factors such as avoidable harm to a person using a service, a care receiver being exposed to a significant risk of harm or a case of theft, misuse or misappropriation of money or property.
In addition to evidence of the above, the CQC will also consider the gravity of the incident, whether there has been a disregard for the requirements of a registered person and if there have been repeated or multiple breaches that give rise to significant risk or persistent and significant poor compliance. Other factors that come into play include whether the service is breaching fundamental standards of care and whether enforcement sends a broader message to a sector and encourages improvement.
Alternatives to Prosecution
Whilst the number of prosecutions may be said to have been creeping slowly up in recent times, prosecutions should really be reserved for the most severe cases. That is why most prosecuted cases relate to safe care and treatment, or lack thereof.
There are alternatives to prosecution, including a simple caution, where the CQC has sufficient evidence to prosecute but decides that considering the limited impact of the alleged offending on service users and the likelihood of achieving improvements by working with the provider and individuals involved, this is a proportionate and effective way to address the issues. They also have the power to issue financial penalty notices.
Of course, holding any registered person accountable for breaches of what may best be termed fundamental principles of care is essential. Still, it is crucial to work with providers where such breaches can be remedied and presented as learning opportunities.
Best Practice for Care Managers
To minimise risk and maintain high standards, care managers should consider the following:
1. Be familiar with CQC Fundamental Standards – These set the minimum level of care required.
2. Implement and Adhere to Policies and Procedures – Regularly review and update policies, especially after adverse incidents.
3. Conduct Regular Quality and Compliance Meetings – Ensure preparedness for CQC inspections.
4. Invite and Act on Feedback – Engage with service users and their families to continually improve.
5. Swiftly Address Complaints – Take immediate action on complaints to prevent escalation.
6. Stay Updated on Sector Changes – Keep abreast of trends and regulatory updates.
7. Understand Consequences – Ensure all staff are aware of the implications of falling short in care standards.
8. Foster a Positive Working Environment – High staff morale improves care and lowers turnover.
Navigating the legal responsibilities as a care manager is critical, especially given the increasing scrutiny and potential for prosecution by the CQC. By adhering to best practices and maintaining a proactive approach to compliance, care managers can ensure they provide the highest quality of care while mitigating legal risks. By prioritising quality care and compliance, we can create safer, more effective healthcare environments that benefit both providers and service users.
