The Care Quality Commission would be able to prosecute providers without warning for the most serious care failings under proposals issued for consultation by government.
Under the proposed draft regulations, the existing 16 essential standards of quality and safety would be replaced by 11 “fundamental standards” against which the CQC would measure providers.
The CQC would be allowed to prosecute providers for the most serious breaches of the first eight standards without issuing a warning notice first, as it is required to do now. This made it hard for the regulator to prosecute where there are serious failings, said the consultation paper.
The cases most likely to be prosecuted are those where there are particularly serious failings in care, multiple breaches at once or persistent breaches over time. The CQC would only be able to prosecute where there was enough evidence to bring a case and it was in the public interest to do so.
The consultation proposed that the CQC would continue to issue pre-prosecution notices for breaches of the final three of the 11 standards, failings against which would not warrant immediate prosecution according to government. The three standards concern having systems in place to ensure compliance with the standards, having sufficient numbers of qualified staff and employing staff of appropriate character and skill.
The CQC could prosecute later if the provider failed make the improvement required in the warning notice.
It would also not bring proceedings for breaches for some sub-sets of the other fundamental standards, such as where providers fail to encourage service users to make decisions about their care to the maximum possible extent.
Directors of care providers convicted of breaking any of the proposed standards could be hit with an unlimited fine.
The consultation on the draft regulations ends on 4 April 2014 and the regulations will come into force on 1 October 2014.
The paper did not cover the ideas of a “fit and proper persons test” for directors of CQC-registered care providers and placing a “duty of candour”, requiring providers to tell service users about serious failings in their care. The paper said there would be separate consultations on these ideas although they would be part of the same regulations as the fundamental standards.
The idea of fundamental care standards was proposed by the Francis Inquiry on why regulators and commissioners failed to spot the serious failings in care at the Mid Staffordshire NHS Foundation Trust sooner.
The Francis Report criticised the current standards as being over-bureaucratic and failing to “separate clearly what is absolutely essential from that which is merely desirable”.