As the Government and various regulators map out the steps they are putting in place in response to the failings highlighted by the <em>Mid Staffs Inquiry </em>and the appalling mistreatment of residents at <em>Winterbourne View</em>, one of the key themes emerging is the focus on accountability for poor standards of care not just at corporate level but also for individual board members.
As the Government and various regulators map out the steps they are putting in place in response to the failings highlighted by the Mid Staffs Inquiry and the appalling mistreatment of residents at Winterbourne View, one of the key themes emerging is the focus on accountability for poor standards of care not just at corporate level but also for individual board members.
In theory, at least, there already exists a range of mechanisms by which directors in care settings can be held accountable in criminal proceedings for care failings. However, the mechanisms are subject to certain limitations, whether technical or practical:
All of this has led to what Robert Francis QC, in the Mid Staffs Inquiry, referred to as a “regulatory gap”, where serious patient safety incidents did not result in enforcement action being taken. The resolve of the Government, and regulators, following the Inquiry has been to close this regulatory gap. The current Department of Health consultation 'Strengthening corporate accountability in health and social care' and the CQC consultation 'A new start' make it clear that the intention is to 'close the gap' not only for corporate bodies but also for individual directors.
The major changes proposed are:
- Cleanliness of environment;
- Lack of abuse and discrimination;
- Administration of prescribed medication;
- Assistance with washing and toileting;
- Provision of sufficient food and drink and assistance to eat and drink where required;
- Not victimising people raising complaints.
The Department of Health consultation states (at para.34) that the changes will “make it easier for CQC to prosecute both corporate bodies and individual directors for providing poor and harmful levels of care, in effect giving CQC the power to prosecute for criminal neglect”.
In addition to all of this, Professor Don Berwick's National Advisory Group report 'A promise to learn – a commitment to act' has recommended the government introduce a new offence of wilful or reckless neglect or mistreatment, which will be applicable to both organisations and individuals. Again, if introduced by the Government, it would appear that this may impact on all health and social care providers.
One of the other concerns resulting from the Mid Staffs Inquiry was the ability of directors who had presided over poor standards of care, to move to new posts in alternative providers.
The current reforms propose to crack down on a director's ability to transfer between posts and ensure more individual accountability: the CQC consultation states that, in addition to registered providers and managers, “named directors or leaders of organisations are personally held to account” for a commitment to deliver safe, effective, compassionate, high-quality care.
This will be backed up by a power to remove board members from their posts. CQC will have the power to deem directors not to be 'fit and proper'. The Department of Health consultation makes it clear that regulations and guidance (likely to be introduced by April 2014) will define what is meant by a 'fit and proper' person, but states this could include not only concerns relating to general or financial background and honesty and integrity, but also issues regarding the individual’s competence and capability and previous history as a director. The proposal is that, where an individual is deemed to be unfit, CQC would be able to insist upon their removal as a director by way of imposing conditions upon the provider’s registration. In theory, CQC has always had the power to issue whatever conditions it thinks fit. However, the recent consultations signal an intention to use these powers in the context of directors' fitness.
In addition to CQC’s proposed powers to deem directors not 'fit and proper' persons, directors also need to be aware of the possibility that enforcement action before a criminal court may result in the court imposing a disqualification order on them under the Companies Directors’ Disqualification Act 1986. Such orders can prohibit individuals from acting as a director of any company during the period of disqualification (which may be up to 15 years).
It is clear that, in the care sector, the prospect of enforcement action for failings in standards is increasing; this is not only the case for providers generally but also particularly for directors. In terms of potential prosecution by CQC, those directors identified as “nominated individuals” are perhaps the most likely to face enforcement action. However, any director could be at risk of prosecution if the circumstances in which a risk arises are under their direction or control. In the light of this, directors need, more than ever, to have proper governance and assurance systems in place so as to protect not only their organisations, but also themselves, from potential liabilities.