CQC will prosecute care home bosses if they fail to meet 'fundamental standards' of care

The Care Quality Commission will prosecute owners and managers of care homes if they fail to adhere to the new ‘fundamental standards’ of care, according to new draft guidance.

David Behan, chief executive of the Care Quality Commission

Currently, the CQC has to warn care homes and health groups before embarking on the prosecution process.

But under the new draft guidance on the 'fundamental standards', the CQC would be allowed to prosecute providers for the most serious breaches of the new standards of care, which will come into effect by next April.

The new regulations called ‘fundamental standards’ are more focused and clear about the care that people should always expect to receive in care homes, home care, etc.

David Behan, chief executive of the Care Quality Commission said: “We are consulting on our proposed guidance on how providers can meet the requirements of the new regulations and on how we intend to use our enforcement powers.

“It is essential that CQC uses these new responsibilities well to encourage a culture of openness and to hold providers and directors to account when care fails people.”

He added: “We have already started to inspect services against the five key questions that matter most to the people who use them – are they safe, effective, caring, responsive to people’s needs, and well-led. This helps our inspection teams to identify good care.

“Where our inspection teams identify poor care, this guidance will help us to determine whether there is a breach of regulations and if so, what action to take. In some cases, this will mean we will use our powers to prosecute.”

The new standards of care include both the new ‘duty of candour’ and the ‘fit and proper persons’ requirements. These will oblige providers to be open and honest when things go wrong and to hold directors to account when care fails people. These two requirements will apply to NHS Trusts from this October and other care providers such as care homes in April 2015.

CQC has issued its draft guidance on how providers can meet the eleven fundamental standards as part of a public consultation.

Alongside this, CQC is asking for views on how it will use its strengthened enforcement powers, as set out in the Care Act 2014.

These will allow CQC to decide on the most appropriate enforcement action to take when care falls below the required standard rather than starting at the bottom of the scale. This includes CQC being able to prosecute providers without having to issue a warning notice first.

Once finalised, the guidance will help providers to understand how they can meet the new regulations and when they do not, what actions CQC will take.

CQC will run its consultation for 12 weeks, ending on Friday 17 October 2014.

Alongside this, CQC is running a separate consultation for six weeks (ending on Friday 5 September), specifically on how NHS trusts can meet the ‘duty of candour’ and “fit and proper person” requirements. This is because these two requirements will come into force for the NHS from October, whereas for other care sectors, they will come into effect from next April subject to Parliamentary approval and along with the rest of the new regulations.

The ‘fit and proper persons” requirement’ (Regulation 20) will mean chairs of providers will have to declare in writing to CQC that their directors have been assessed to be fit for their roles, taking into account any associations with serious misconduct and care failings in previous roles, as well as qualifications, skills, experience and Disclosure and Barring Service (DBS) checks. If this cannot be demonstrated, CQC will be able to require providers to remove the director, or if the organisation is registering with CQC to provide care services, to refuse their application.

To view the consultation go to http://www.cqc.org.uk/sites/default/files/20140725_fundamental_standards_and_enforcement_consultation_final.pdf