Care Quality Commission

The CQC came into existence in April 2010. As the independent regulator of health and adult social care in England, the CQC has a broad remit and extensive regulatory powers at its disposal in a bid to fulfil its overriding objective under s.3(1) of the Health and Social Care Act 2008 to “protect and promote the health, safety and welfare of people who use health and social care services” and to uphold the “Fundamental Standards” introduced by the 2014 Regulations.

Dealing with aspects such as registration, monitoring, inspection and rating of providers the CQC has enforcement mechanisms at its core which include inter alia, Requirement Notices, Warning Notices, Notices of Proposal, Notices of Decision and in urgent cases Suspension Notices and Magistrates’ Court Orders. The CQC’s civil powers to impose conditions, suspend registration or cancel registration can have far reaching financial and reputational impact upon a business (as well as knock on consequences upon staff and the well-being of service users.)

Breaches of regulations that constitute criminal offences can in limited cases be dealt with by way of fixed penalty offences where prescribed, other alleged offences may be prosecuted under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (as amended) and the Care Quality Commission (Registration) Regulations 2009 (as amended). Offences under the 2014 Regulations contain a “due diligence” defence, unlike those in the 2009 Regulations.

All of the above makes the early instruction of Counsel (whether for the CQC or acting on behalf of the Registered Manager/ Nominated Individual or Service Provider) a must in order that robust, timely advice can be provided. Delay can make the difference to the success or failure of a prosecution or defence appeal where strict time limits often apply and the opportunity to make written representations may have already passed.

Our regulatory team regularly appear at the Coroner’s Court, Magistrates, Crown court, First Tier Tribunal (Health, Education and Social Care Chamber) and Upper Tribunal in relation to the above matters. We pride ourselves on a diverse team with a breath of experience in health and social care, practical, no nonsense advice and effective advocacy. As independent advocates our team acts on behalf of the CQC and against them- thus allowing us to make well-judged decisions and understand what goes on behind the scenes from a practical perspective at both ends.

The team are well versed on complex legal issues such as DOLS, Article 2, neglect, causation which often feature at inquest level and form the basis for prosecution either by the CQC or CPS at a later stage. We have undertaken registration appeals on behalf of the CQC where it has refused to register Managers on the basis they and/or the Nominated Individual lack the necessary qualifications, skills and experience or are not deemed to be of “good character” or where the Service Provider has failed to demonstrate it will be able to comply with the Fundamental Standards of Care.

On behalf of service providers, members have prepared detailed Scott Schedules and skeleton arguments in cases involving expert evidence where the CQC sought to vary registration to remove an address (which would have meant closure of the care home). Members have also acted for residential nursing and care homes in respect of judicial reviews of CQC assessments of homes that have been rated as “Requires Improvement”.

In addition, of late, we have had two senior members provide advice and representation for separate major Care Home companies alleged to have committed serious criminal offending (prosecuted by the CQC), one involving issues of capacity, safeguarding and sexual offences, the other raising issues of failure to provide safe care and treatment for an elderly quadriplegic resident. Members have also dealt with DOLS applications for the CQC and drafted responses to CQC requirement and warning notices on behalf of service providers.