Over the past few years CQC has demonstrated its appetite for bringing prosecutions. There was a peak of prosecutorial activity in 2019 and since then CQC has pursued a steady flow of prosecutions each year.
CQC’s current risk-based approach to inspections, originally adopted back in 2020, has placed a stronger focus on fault as opposed to looking for good, and further highlights cases that may be open to prosecution.
It can be worrying for providers to hear CQC is considering prosecution. Understanding when CQC can take action and how they approach prosecutions can help providers make informed decisions on how to respond.
The focus of this article is on provider companies, directors and managers but wider individuals can also be prosecuted e.g. any person who obstructs an inspector carrying out an inspection.
How can CQC prosecute?
The main legislation underpinning CQC’s powers to prosecute include:
- Health and Social Care Act 2008 (“HSCA 2008”)
- Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“Regulated Activities Regulations”)
- Care Quality Commission (Registration) Regulations 2009 (“Registration Regulations”)
There are multiple prosecutable offences that providers should be familiar with. According to CQC’s published prosecutions tracker, the vast majority of prosecutions are pursued in relation to breaches of Regulation 12 of the Regulated Activities Regulations (related to safe care and treatment) and Section 10 of the HSCA 2008 (related to carrying on regulated activities without registration).
CQC has also pursued prosecutions in relation to the following:
- Regulations 13, 20 and 20A of the Regulated Activities Regulations (related to safeguarding, the duty of candour and the display of ratings);
- Regulation 16 of the CQC Registration Regulations (related to notifications of the death of service users);
- Sections 10, 36, 64 and 91 of the HSCA 2008 (related to carrying out an unregistered service, false descriptions, failure to provide information and directors who have consented to or were neglectful of carrying on a service without registration).
Some offences can be directly prosecutable, for example failure to comply with conditions of registration (see section 33 of the HSCA 2008), and breaches of certain provisions under regulations 11 (need for consent) and 20 (duty of candour) of the Regulated Activities Regulations among others.
Some regulatory breaches require additional qualifications to enable CQC to prosecute, such as the exposure to certain levels of harm. For example, regulations 12, 13 and 14 of the Regulated Activities Regulations.
Other regulatory breaches do not amount to offences if breached, for example regulation 18 (staffing), regulation 10 (dignity and respect) and certain provisions under regulation 17 (good governance) of the Regulated Activities Regulations.
What are the consequences of a successful CQC prosecution?
If CQC is pursuing a registered company or a registered manger the penalty will be a monetary fine.
In relation to unregistered provision, as well as a fine, it is possible for an individual to be imprisoned for up to 12 months.
There is no limit to the level of fine for some offences and fines against registered provider companies have ranged between £500 to just over £2.5million. The amount is partly based on the turnover of the company.
How successful are CQC prosecutions?
Since the HSCA 2008 came into force, statistics show CQC has undertaken 114 separate prosecutions (up to 1 May 2025). Some of these prosecutions (35) have included multiple charges, for example in some cases CQC has pursued individual directors and/or registered managers alongside the registered
company and other cases involve the same breach at multiple locations or different breaches at one location.
In the vast majority of cases, the defendant has pleaded guilty. This could in part be due to CQC seeking to prosecute the strongest cases, coupled with the discount applied for an early guilty plea. If a guilty plea is entered at the first available opportunity (usually considered to be at the first court appearance)
then a reduction of one-third will be applied to the sentence.
There are currently only 4 examples of ‘not guilty’ pleas having been pursued and only one of these resulted in an ultimate finding of ‘not guilty’.
As such, while the figures demonstrate an overwhelmingly positive success rate for CQC prosecutions, each case will turn on its facts and the figures could be indicative of cautious defendants who don’t want to risk the potential for higher fines.
CQC’s published prosecutions tracker provides details of concluded CQC prosecutions. The tracker can be accessed at the following page:
https://www.cqc.org.uk/about-us/how-we-do-our-job/prosecutions.
CQC may also reports on successful prosecutions by issuing a press release.
What is the process for CQC prosecution?
Internal consideration
CQC’s enforcement policy and decision tree is clear that criminal enforcement action will be considered in every case where CQC proposes civil enforcement and/or identifies a specific incident of suspected avoidable harm.
CQC will consider the most appropriate action following a review of the 2-stage test set out in the Code for Crown Prosecutors. The 2 stage test requires CQC to consider:
- The sufficiency of evidence gathered; and
- The public interest to be served in taking criminal enforcement action.
CQC must also have regard to CQC’s prosecution criteria as set out in the enforcement policy.
There is a very low bar for what CQC must prove in order to prosecute a provider. For example, in relation to offences concerning regulations 12, 13 (1-4) and 14 of the Regulated Activities Regulations, CQC must show that the legislative breach resulted in avoidable harm (physical or psychological nature) to a service user, or a service user being exposed to a significant risk of such harm occurring or suffering a loss of money or property as a result of theft, misuse or misappropriation. In practice, the majority of prosecutions of registered providers relate to examples of actual harm or examples of instances where CQC has prompted a provider to make improvements and it has subsequently been found that they have failed to do so.
CQC must bring proceedings within 3 years of the date of the alleged offence (see section 90(2) HSCA 2008).
Investigation
A registered provider may initially receive an email from their CQC inspection team requesting further information in relation to a potential regulatory breach. The initial stage of enquiry may seem fairly non eventful but providers should always be mindful of requests for information from the regulator and consider their responses carefully.
If CQC decides it has sufficient information to continue to pursue its enquiries, the provider/individual concerned may receive a letter from CQC stating CQC considers a criminal offence may have been committed and inviting the addressee to provide a response to the alleged offence(s) noted in the letter.
There is no requirement to respond to the letter but any response will assist CQC in deciding what to do next. For example, they could decide to do nothing, issue a fixed penalty notice or prosecute. Providers should seek legal advice to determine the best approach. Potential responses may include a denial of the accusations, a defence and/or points of mitigation.
If CQC decides to proceed with a potential prosecution, the provider/individual will receive a PACE Disclosure Notice. This is a letter setting out the nature of the offence, why the recipient is a suspect and inviting them to attend an interview under caution. They may also be given the option to respond to a list of questions in writing as opposed to attending in person. It is highly recommended legal advice is sought promptly before responding to such letters.
For CQC prosecutions related to offences listed under Regulation 22 of the Regulated Activities Regulations, it is a defence for the provider to prove that they took “all reasonable steps and exercised all due diligence to prevent the breach of any of those regulations that has occurred.”
Charges
Sometimes after this stage CQC may decide not to continue to pursue a prosecution and you may not hear anything further. CQC may alternatively decide to issue a fixed penalty notice if legislation allows for this.
If CQC believes it has sufficient evidence to continue with a prosecution it will proceed to charge the company or any relevant individual(s) with an offence. CQC may ask the company/individual(s) to indicate whether they intend to plead guilty or not guilty to the offence. There is no obligation to respond to such queries (see above re: when the early guilty plea discount is applied).
If a plea of guilty is entered, the case will proceed to a sentencing hearing and parties will be given the opportunity to submit evidence in advance to support their case.
If a plea of not-guilty is entered, the case will proceed to a full hearing of the facts with the prosecution and defence being afforded the opportunity to put their case to the court before a decision is made.
How to respond to CQC prosecution?
CQC prosecution is a serious criminal process that can lead to significant monetary fines with the potential of custodial sentences for individuals in relation to unregistered provision.
Prosecution can also have a reputational impact. Any potential investigations should be taken seriously. Each case will depend on its facts and it is important that providers and managers consider seeking legal advice at an early stage to ensure the right decisions are taken at the right time.
About the Author
Senior Associate
Tel: 01483 451 900