CQC to prosecute providers without warning for serious care failings under government plans

Department of Health consults on 11 fundamental standards against which CQC will measure health and social care providers

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 fundamental standards are:

a) care and treatment must reflect service users’ needs and preferences;
(b) service users must be treated with dignity and respect;
(c) care and treatment must only be provided with consent;
(d) all care and treatment provided must be appropriate and safe;
(e) service users must not be subject to abuse;
(f) service users’ nutritional needs must be met;
(g) all premises and equipment used must be safe, clean, secure, suitable for the purpose for which they are being used, and properly used and maintained;
(h) complaints must be appropriately investigated and appropriate action taken in response;
(i) systems and processes must be established to ensure compliance with these Fundamental Standards;
(j) sufficient numbers of suitably qualified, skilled and experienced staff must be deployed to meet these standards;
(k) persons employed must be of good character, have the necessary qualifications, skills and experience, and be capable of performing the work for which they are employed

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”.

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