CRIMINAL PROSECUTION FOR REGULATORY OFFENCES UNDER
THE CARE STANDARDS ACT 2000: ONE STRIKE AND YOU'RE OUT? By
Michael Curtis 1
Crown Office Chambers
2 Crown Office Row
Temple
London EC4Y 7HJ
SUMMARY
- Under the former regulatory
regime contained in the regulations enacted under the Registered
Homes Act 1984, providers could be prosecuted for a breach of a
regulation only where the provider continued to infringe a
regulation after the service of a statutory notice on him by the
regulator. In effect, the offence consisted in the continuation of
the breach. Given the reluctance in most cases of the previous
regulators even to serve a statutory notice until a breach had
occurred more than once, this resulted in a regime of ‘three
strikes and you’re out’.
- The position under the Care
Standards Act 2000 is different. Where the provider acts or fails
to act in a way that breaches the terms of a regulation and where
the breach is such that there is no action that it is practicable
for the provider to take to comply with the relevant regulation,
the regulator can prosecute the provider in respect of the
original act or omission following the service by the regulator on
the provider of the required statutory notice: ‘one strike
and you’re out’.
- Many acts or omissions can be
characterised as a breach of a number of different regulations.
Whether there is action it is practicable for the provider to take
to comply with the relevant regulation will often depend on
precisely how the breach is characterised. The possibility of
immediate prosecution is therefore likely to depend on precisely
how the regulator chooses to characterise the breach.
- This change, which appears to
have gone largely unnoticed, places a powerful weapon in the hands
of the regulator, but one whose exercise will be susceptible to
judicial review. The power is considered in more detail below.
Attention will focus on the role of CSCI (‘The Commission’)
under regulation 43 of the Care Standards Regulations 2001 (as
amended). However, the same principles will apply to the similar
power conferred on the Healthcare Commission by the Private &
Voluntary Health Care (England) Regulations 2001.
The
regulations made under the Care Standards Act 2000
The
Regulations
- There are a number of sets of
regulations. Each applies to a different form of establishment.
The Care Standards Regulations 2001 apply to care homes. The
Private & Voluntary Health Care (England) Regulations 2001
apply to healthcare establishments. The Children’s Homes
Regulations apply to children’s homes.
- The relevant regulations are
set out below.
- The Care Standards
Regulations 2001 regulation 43 (as amended by SI 2002 No. 865)
provides as follows (the emphasis is the author’s):
(1) A
contravention or failure to comply with any of the provisions of
regulations 4, 5, 5A, 11, 12(1) to (4), 13(1) to (4) and (6) to (8),
14, 15, 16(1), (2)(a) to (j) and (l) to (n) and (3), 17 to 26 and 37
to 40 shall be an offence.
(2) The
Commission shall not bring proceedings against a person in
respect of any contravention or failure to comply with those
regulations unless-
(a) subject to
paragraph (4), he is a registered person;
(b) notice
has been given to him in accordance with paragraph (3);
(c) the period
specified in the notice, within which the registered person may make
representations to the Commission, has expired; and
(d) in a case where,
in accordance with paragraph (3)(b), the notice specifies any
action that is to be taken within a specified period, the
period has expired and the action has not been taken within that
period.
(3) Where the
Commission considers that the registered person has contravened
or failed to comply with any of the provisions of the regulations
mentioned in paragraph (1), it may serve a notice on the
registered person specifying-
(a) in what
respect in its opinion the registered person has contravened
or is contravening any of the regulations or has failed or is
failing to comply with the requirements of any of the regulations;
(b) where
it is practicable for the registered person to take action for
the purpose of complying with any of those regulations, the
action which, in the opinion of the Commission, the
registered person should take for that purpose;
(c) the
period, not exceeding three months, within which the
registered person should take any action specified in accordance
with sub-paragraph (b);
(d) the
period, not exceeding one month, within which the registered person
may make representations to the Commission about the notice.
(4) The
Commission may bring proceedings against a person who was once, but
no longer is, a registered person, in respect of a failure to comply
with regulation 17 and for this purpose, references in paragraphs
(2) and (3) to a registered person shall be taken to include such a
person.
- The regulations that cover
the provision of private and voluntary health care and the
provision of children’s homes are in the same terms in all
material respects.
- The Private & Voluntary
Health Care (England) Regulations 2001 regulation 51 (as amended
by SI 2002 No. 865) provide:
(1) A
contravention or failure to comply with any of the provisions of
regulations 6, 7, 9, 14, 15, 16(1) to (4), 17 to 30 (17 to 32),
34 to 42 and 44 to 49 shall be an offence.
(2) The
Commission shall not bring proceedings against a person in respect
of any contravention or failure to comply with those regulations
unless-
(a) subject to
paragraph (4), he is a registered person;
(b) notice has
been given to him in accordance with paragraph (3);
(c) the period
specified in the notice, within which the registered person may make
representations to the Commission, has expired; and
(d) in a case
where, in accordance with paragraph (3)(b), the notice specifies any
action that is to be taken within a specified period, the period has
expired and the action has not been taken within that period.
(3) Where the
Commission considers that the registered person has contravened or
failed to comply with any of the provisions of the regulations
mentioned in paragraph (1), it may serve a notice on the registered
person specifying-
(a) in what
respect in its opinion the registered person has contravened or is
contravening any of the regulations or has failed or is failing to
comply with the requirements of any of the regulations;
(b) where it
is practicable for the registered person to take action for the
purpose of complying with any of those regulations, the action
which, in the opinion of the Commission, the registered person
should take for that purpose;
(c) the
period, not exceeding three months, within which the registered
person should take any action specified in accordance with
sub-paragraph (b);
(d) the
period, not exceeding one month, within which the registered person
may make representations to the Commission about the notice.
.(4) The
Commission may bring proceedings against a person who was once, but
no longer is, a registered person, in respect of a failure to comply
with regulation 21 and for this purpose, references in paragraphs
(2) and (3) to a registered person shall be taken to include such a
person.
- The Children’s Homes
Regulations 2001 regulation 41 (as amended by SI 2002 No. 865)
provides:
(1) A
contravention or failure to comply with the provisions of
regulations 4 to 38 shall be an offence.
(2) The
Commission shall not bring proceedings against a person in respect
of any contravention or failure to comply with those regulations
unless-
(a) subject to
paragraph (4), he is a registered person;
(b) notice has
been given to him in accordance with paragraph (3);
(c) the period
specified in the notice, within which the registered person may make
representations to the Commission, has expired; and
(d) in a case
where, in accordance with paragraph (3)(b), the notice specifies any
action that is to be taken with a specified period, the period has
expired and the action has not been taken within that period.
(3) Where the
Commission considers that the registered person has contravened or
failed to comply with any of the provisions of the regulations
mentioned in paragraph (1), it may serve a notice on the registered
person specifying-
(a) in what
respect in its opinion the registered person has contravened or is
contravening any of the regulations or has failed or is failing to
comply with the requirements of any of the regulations;
(b) where it
is practicable for the registered person to take action for the
purpose of complying with any of those regulations, the action
which, in the opinion of the Commission, the registered person
should take for that purpose;
(c) the
period, not exceeding three months, within which the registered
person should take any action specified in accordance with
sub-paragraph (b);
(d) the
period, not exceeding one month, within which the registered person
may make representations to the Commission about the notice.
(4) The
Commission may bring proceedings against a person who was once, but
no longer is, a registered person, in respect of a failure to comply
with regulation 21 and for this purpose, references in paragraphs
(2) and (3) to a registered person shall be taken to include such a
person.
What do the
regulations mean?
- It is clear that where the
Commission considers a registered person has committed an offence
by a contravention of or failure to comply with the relevant
regulations and where the Commission is considering bringing
criminal proceedings against that person, the Commission must
first serve a notice, which must contain the information set out
in regulation 43(3).
- The difficult point of
interpretation arises out of:
- The fact that the
regulation employs two different terms: (1) a contravention of
the regulations and (2) a failure to comply with the provisions
of the regulations. Both terms are used in the alternative in
paragraph (1), in the opening text of paragraph (2), in the
opening text of paragraph (3), and in subparagraph (3)(a).
However, only the second term (albeit in terms of ‘compliance’
rather than ‘failure to comply’) appears in sub-paragraph
3(b): "…for the purpose of complying with those
regulations…".
- The provision in
subparagraph (3)(b) that where it is practicable for the
registered person to take action for the purpose of complying
with any of those regulations, the notice must include the
action which, in the opinion of the Commission, the registered
person should take for that purpose.
- The provision in
subparagraph (2)(d) that where the notice specifies the action
the registered person must take for the purpose of complying
with the regulations, and where the registered person takes the
action within the period specified in the notice, the Commission
may not bring proceedings against the registered person in
respect of the contravention.
- This poses a number of
questions:
- Question 1: What, if
anything, turns on the use of the two different terms –
contravening and failing to comply?
- Question 2: Where the
registered person commits an offence by contravening a
regulation or by failing to comply with it, and where it is
practicable for him to take action for the purpose of complying
with the regulation, must the Commission serve a notice which
includes information about the action the registered person must
take to comply with the regulation? And provided the provider
takes the action, is it the case that the Commission will not be
able to bring proceedings for the offence?
- Question 3: Where it is not
practicable for the registered person to take action for the
purpose of complying with the regulation, the Commission must
still serve a notice but it does not have to include the
information the registered person must take to comply with the
regulation. Once the period for making representations has
expired, can the Commission then prosecute for the original
offence?
- Question 4: If the
Commission can, what is the underlying rationale of a regulatory
scheme that appears to treat continuing breaches more leniently
than one-off breaches?
Questions 1
and 2
- Questions 1 and 2 can be
dealt with together.
- The starting point for the
enquiry lies in the terms of the various regulations listed in
43(1).
- Some of them require that the
registered person ‘shall’ do certain things. For
example, regulation 4 provides that the registered person ‘shall
provide’ a statement of purpose; regulation 5 provides that
he ‘shall produce’ a service user’s guide; and
regulation 12 provides that he ‘shall’ do a
number of things in connection with the health and welfare of
service users. These are only examples. Many of the regulations
listed in 43(1) use the term ‘shall’ to impose
requirements on the registered person.
- Other regulations prohibit
the registered person from doing certain things by use of the term
‘shall not’. For example, regulation 19 (employment of
staff), regulation 20 (restrictions on acting for service user)
and regulation 23 (fitness of premises).
- However, all the regulations
relate to the service provided by the registered person and the
purpose of each of them is to secure the provision of proper and
adequate care to each of the users of the service.
- When one considers the
wide-ranging scope and nature of the regulations listed in 43(1)
it is clear that the ways in which a registered person might
infringe them are many and various. A registered person might
breach them by taking a positive act – a commission – or by a
failure to act – an omission.
- It is tempting to conclude
that this was distinction the draftsman had in mind when he used
the two terms ‘contravention’ and ‘failure to comply’, the
former to denote a commission and the latter to denote an
omission. Such a conclusion appears to be consistent with the
language of paragraph (3)(b), which speaks of the registered
person taking action for the purpose of complying with the
regulations. This suggests that a ‘failure to comply’ is
synonymous with an omission, which can be cured by positive
action.
- However, this does not in
fact seem to be the right conclusion. One can think of many ways
in which a regulation can be broken by an act of commission but
where there will still be positive action the registered person
can take for the purpose of complying with the regulation.
Similarly, one can think of many breaches that could be classified
either as a commission or an omission, depending on how one looks
at the matter. Assume, for example, that a member of staff
administers the wrong medication to a service user because of an
inaccuracy in the care plan or the medication chart for that
particular service user. Is that to be regarded as a positive act
that is deleterious to the health of the individual service user?
Or is it to be regarded as an omission by the registered person to
maintain an accurate care plan or medication chart? And whichever
it is, could not positive action be taken to comply with the
regulation by ensuring no repetition of the bad practice that
resulted in the original breach?
- These questions seem to show
that whether the original breach of the regulation lies in a
positive act (a commission) or whether it lies in a failure to act
(an omission), there may still be positive action it is
practicable for the registered person to take to comply with the
relevant regulation. It follows that the distinction between
commissions and omissions was not the one the draftsman had in
mind when he used the two terms contravention and failure to
comply.
- Whether there is action it is
practicable for the registered person to take for the purpose of
complying with the regulation in question depends not on whether
the breach results from a positive act of commission on the one
hand or an omission on the other, but on whether the breach is ‘remediable’
by positive action.
- This, it seems, is the
distinction the draftsman had in mind when he used the two terms
‘contravention’ and ‘failure to comply’ and when he used
the expression ‘action for the purpose of complying’ in
paragraph 3(b). What he had in mind was the distinction between
remediable and irremediable breaches of the regulations.
- This conclusion is consistent
with the overall shape of regulation 43. A breach does not occur
in a vacuum. It results from an act or omission by the registered
person. That is the act or omission the Commission will have to
prove in order to secure a conviction for an offence.
- The language of regulation 43
must be read with this in mind. It is the particular facts of the
specific breach in question that will determine how the Commission
goes about specifying in the notice the respects in which the
registered person has contravened/is contravening/has failed to
comply/is failing to comply with ‘any of the
regulations’ (paragraph (3)(a)).
- This will in turn determine
whether it is practicable for the registered person to take action
for the purpose of complying with ‘any of those regulations’:
whether or not it is practicable for the registered person to take
action to comply with the regulation in question will depend, it
would seem, on the specific respect in which the Commission say it
considers there has been an infringement. In short, the nature of
the infringement of the regulation will determine whether it is
practicable to do anything to comply with the regulation.
- Where the Commission complies
with paragraph (3)(a) by specifying the infringement of the
regulations in terms which would allow the registered person to
take action for the purpose of complying with the regulation that
has been breached, the Commission will necessarily have to set out
that action in the notice to comply with 3(b), with the result
that if the registered person takes the action the Commission will
not be able to prosecute.
- It follows that the drafting
of the first part of the notice (i.e. the part required by
paragraph (3)(a)) is likely to be crucial.
Question 3
(see 13.3 above)
- In general and subject to
various exceptions it is permissible to have regard to the
legislative history when seeking to construe an enactment. The
legislative history will include any previous enactments and, in
appropriate circumstances, committee reports and Hansard.
- The Parliamentary material is
of little assistance.
- The 2002 (Miscellaneous
Amendments) Regulations appear in the Annex to the Joint Committee
on Statutory Instruments Twenty-Seventh Report in the list of
statutory instruments on which the Committee felt no need to make
any particular comment.
- The 2002 (Miscellaneous
Amendments) Regulations appear in Annex 3a to the First Special
Report of the Joint Committee on Statutory Instruments. The brief
comment contained in Annex 3a refers only to those amending
regulations whose purpose was to correct errors that had been made
in the drafting of the original regulations. The amending
regulations, which amended the relevant regulations where, do not
receive any comment.
- The legislative history of
Regulation 43 is more helpful.
- The Care Standards Act 2000
and the regulations made under it repealed and replaced the
previous regime under the Registered Homes Act 1984.
- There were two sets of
regulations made under the Registered Homes Act 1984: the
Residential Care Homes Regulations (which applied to Part I Homes)
and the Nursing Homes Regulations 1984 (which applied to Part II
Homes).
- The Residential Care Homes
Regulations 1984 (SI 1984 No. 1345) regulation 20 provided:
(1) Subject to
paragraph (3) of this regulation, where the registration authority
consider that the person registered has contravened or failed to
comply with regulation 6, 10, 11, 13, 14, 15, 16 or 19 of these
regulations, the authority may serve a notice on the person
registered specifying-
(a) in what
respect in their opinion the person registered has failed or is
failing to comply with the requirements of that regulation;
(b) what
action, in the opinion of the registration authority, the person
registered should take so as to comply with that regulation; and
(c) the
period, not exceeding three months, within which the person
registered should take action.
(2) Where
notice has been given in accordance with paragraph (1) of this
regulation and the period specified in the notice, beginning with
the date of the notice, has expired, the person registered who
contravenes or fails to comply with any provision of these
regulations mentioned in the notice shall be guilty of an offence
against these regulations.
(3) The
provisions of this regulation shall not apply where the registration
authority has applied to a justice of the peace for an order under
section 11 of the Act or while such an order is in force.
- The following are the salient
features of the Residential Care Homes Regulations 1984:
- The Regulations impose
duties upon registered persons.
- A contravention of or
failure to comply with those regulations is not of itself an
offence.
- Regulation 20 provides that
where the registration authority considers that the registered
person has failed to comply with any of the regulations listed
in regulation 20, the authority may serve a notice on him.
- Where the period specified
in the notice has expired, the person registered who contravenes
or fails to comply with any provision of the regulations
mentioned in the notice is guilty of an offence.
- The service of the notice
and the expiry of the time limit contained in it are
pre-conditions to a prosecution. The offence consists of the
failure of the registered person to comply with the provisions
of any regulation mentioned in the notice.
- In other words, a
prosecution could only be brought in respect of breaches that
occurred after a valid notice had been served and after the
expiry of the period stated in that notice.
- The regulation does not say
what happens if the registered person takes the action the
notice says he must take. There are two possibilities. The first
possibility is that where a person takes the action he has to
take, but later breaches the same regulation again at a later
date, the registration authority can immediately prosecute. The
second possibility is that where the person takes the action he
has to take, the notice is ‘spent’ in the sense that the
registration authority must serve a further notice in the event
of a further breach of the same regulation before being able to
prosecute. In practice, in the author’s experience
registration authorities more often took the latter course.
- The Nursing Homes and Mental
Nursing Homes Regulations 1984 (SI 1984 No 1578) regulation 15
paragraphs (1) to (3) stated that any person who failed to comply
with the regulations identified in those paragraphs should be
guilty of an offence against the regulations. Paragraphs (4) and
(5) provided:
(4)
Subject to paragraph (5), the Secretary of State shall not bring
proceedings against a person in respect of any failure referred
to in paragraph (1) or (3) unless-
(a) he has
served on that person a notice in writing specifying-
(i)
the provision of these regulations with which that
person, in the Secretary of State’s opinion, has
failed or is failing to comply,
(ii)
the respect in which, in the Secretary of State’s
opinion, that person has failed or is failing to comply
with that provision,
- the action which, in
the Secretary of State’s opinion, should be taken by
that person so as to comply with that provision, and
- the period within
which such action should be taken; and
(b)
the period referred to in sub-paragraph (a)(iv) of this
paragraph has expired.
(5)
Paragraph (4) shall not apply where, at the time proceedings
relating to a home are brought-
(a)
the Secretary of State has applied to a justice of the peace
for an order under section 30(1) of the Act…; or
(b) such an
order is in force.
- The following features
should be noted:
- The scheme of the
regulation is materially different from that in the
Residential Homes regulations.
- A contravention of or
failure to comply with the regulations listed in regulation 40
paragraphs (1) to (3) is an offence.
- Regulation 40 says the
following conditions must be met before proceedings can be
brought for an offence: first, the service of a regulation 40
notice; second, the expiry of the period referred to in the
notice within which the person on whom the notice is served
shall take the action which in the opinion of the Secretary of
State is necessary to comply with the relevant provision.
- Regulation 40 does not
make it a condition that proceedings may only be brought where
the person on whom the notice is served has failed to take the
specified action before the expiry of the period referred to
in the notice. The requirement is that the period has expired,
not that the registered person has failed to take the required
action in the required period. This is a lacuna in the
drafting of the regulation.
- The Care Standards
Regulations 2001 regulation 43 in its original form (prior to
being amended by SI 2002 No. 865) provided as follows (the
later amended text is included in italics for convenience):
(1) A
contravention or failure to comply with any of the provisions of
regulations 4, 5, 5A, 11, 12(1) to (4), 13(1) to (4) and (6) to
(8), 14, 15, 16(1), (2)(a) to (j) and (l) to (n) and (3), 17 to 26
and 37 to 40 shall be an offence.
(2) The
Commission shall not bring proceedings against a person in respect
of any contravention or failure to comply with those regulations
unless-
(a) subject
to paragraph (4), he is a registered person;
(b) notice
has been given to him in accordance with paragraph (3);
(c) the
period specified in the notice has expired and (the period
specified in the notice, within which the registered person may
make representations to the Commission, has expired);
(d) the
person contravenes or fails to comply with any of the provisions
of the regulations mentioned in the notice; (in a case where,
in accordance with paragraph (3)(b), the notice specifies any
action that is to be taken within a specified period, the period
has expired and the action has not been taken within that period).
(3) Where
the Commission considers that the registered person has
contravened or failed to comply with any of the provisions of the
regulations mentioned in paragraph (1), it may serve a notice on
the registered person specifying-
(a) in what
respect in its opinion the registered person has contravened or is
contravening any of the regulations or has failed or is failing to
comply with the requirements of any of the regulations;
(b) what
action, the opinion of the Commission, the registered person
should take so as to comply with any of those regulations; and
(where it is practicable for the registered person to take action
for the purpose of complying with any of those regulations, the
action which, in the opinion of the Commission, the registered
person should take for that purpose);
(c) the
period, not exceeding three months, within which the registered
person should take action. (the period, not exceeding three
months, within which the registered person should take any action
specified in accordance with sub-paragraph (b));
((d) the
period, not exceeding one month, within which the registered
person may make representations to the Commission about the
notice.)
(4) The
Commission may bring proceedings against a person who was once,
but no longer is, a registered person, in respect of a failure to
comply with regulation 17 and for this purpose, references in
paragraphs (2) and (3) to a registered person shall be taken to
include such a person.
- The following features
should be noted:
- Like the Nursing Homes
Regulations and unlike the Residential Homes Regulations, a
contravention or failure to comply with the provisions of the
regulations listed in paragraph (1) is an offence.
- Apart from that, the
scheme of the regulation is similar to the scheme of
regulation 20 of the Residential Homes Regulations.
- This unhappy marriage of
features from the two schemes resulted in the strange position
that although paragraph (1) made a breach of the regulations
an offence, the registered person could only be prosecuted
where a notice was served and he then committed a further
breach of the same regulation.
- The Private & Voluntary
Health Care (England) Regulations 2001 regulation 51 (prior to
amendment by SI 2002 No. 865) and the Children’s Homes
Regulations 2001 regulation 41 (prior to amendment by SI 2002
No. 865) were in the same terms.
- When one considers
regulation 43 against the background of the legislative history
outlined above, the following features become apparent:
- The amended scheme more
closely resembles the scheme in the Nursing Homes Regulations.
- However, the draftsman
has taken the opportunity to limit place a limit on the
circumstances in which the notice must set out ‘the
action which, in the opinion of the Commission, the registered
person should take’. Under the Nursing Homes
Regulations, the notice had to contain the equivalent
information in every case. Under the Care Homes Regulations,
the notice need only do so where it is practicable for the
registered person to take action for the purpose of complying
with the regulations: paragraph 3(b).
- The draftsman has
incorporated paragraph 3(b) into the list of conditions that
must be satisfied before the Commission can prosecute. Where
in accordance with paragraph 3(b) the notice sets out the
action the registered person must take, the Commission cannot
prosecute unless the action has not been taken in the period
stated in the notice: see paragraph 43(2)(d).
- 43(2)(d) fills the ‘lacuna’
in the Nursing Homes Regulations by expressly providing that
the Commission shall not bring a prosecution unless in a case
where the notice specifies any action that is to be taken
within a specified period, the period has expired and the
action has not been taken within that period.
- The draftsman has
introduced a right for the registered person to make
representations to the Commission about the notice. He has
done so not by expressly conferring such a right on the
registered person but rather by requiring that the notice
shall specify the period within which the registered person
may make such representations. Regulation 43 does not
expressly identify the purpose this provision is intended to
serve nor does it specify what the representations may be
about. In the absence of any indication about these matters,
the proper construction of the regulation appears to be that
the registered person may make whatever representations he
wants that are relevant to any aspect of the notice.
- The draftsman of the
amendments did not take the opportunity to say expressly
whether, in circumstances where it is not practicable for the
registered person to take action for the purpose of complying
with the regulation in question, the Commission may bring
proceedings against a person in respect of the original
contravention or failure to comply with that regulation after
service of a notice containing the information set out in 43(a)
and (d) and after the expiry of the period set out in the notice
within which the registered person may make representations.
- However, when one considers
the terms of regulation 43 in the light of the legislative
history outlined above, the answer appears clearly to be that in
the circumstances set out in the previous paragraph, the
Commission may bring proceedings.
- The draftsman has provided
that the Commission cannot prosecute unless a number of
conditions are satisfied. Where it is not practicable for the
registered person to take action for the purpose of complying
with the regulation in question, the only conditions that must
be satisfied are those set out in sub-paragraphs (2)(a) and (d).
- The draftsman could have
included a further condition by adding a sub-paragraph (2)(e)
saying something to the effect that where paragraph (3)(b) does
not apply, the Commission may not prosecute unless the
registered person commits a further breach of the same
regulation. Had he done so, then in such circumstances the
regulation would have reflected the approach of the Residential
Homes Regulations. However, the draftsman chose not to do so.
- The draftsman has included
a right for the registered person to make representations and
has provided that the Commission may not prosecute until the
period within which the registered person may make
representations has expired. The right to make representations
is a familiar one. It can be found in the text of the Care
Standards Act. In general terms, where the Commission proposes
to take enforcement action under the terms of the Act, the
registered person first has the right to make representations.
The draftsman clearly intended that a registered person faced
with a regulation 43 notice should have a similar right. This
means that in a case where it is not practicable for the
registered person to take action to comply with the regulation
in question, regulation 43 gives him the opportunity to make
representations to the Commission before the Commission takes
proceedings.
- The procedure of allowing a
person who is liable to prosecution to make representations to
the prosecutor why he should not be prosecuted is an alien one.
The Commission is clearly under a duty to act rationally when
considering the representations and its decision will be
susceptible to judicial review: see the authorities cited in The
Judicial Review Handbook (3rd edition) para
5.2.10(D). It is to be expected that some providers may seek to
challenge decisions to prosecute by way of judicial review.
Question 4
(see 13.4 above)
- As noted above, it seems
strange that the regulations treat a ‘one-off’ irremediable
breach more harshly than a continuing breach: the latter can
only be the subject of a prosecution after a provider has been
given the opportunity to put things right and has failed to do
so.
- It is useful to consider
the contrasting provisions of the Health & Safety at Work
legislation.
- The Robens Committee
recommended that ‘Inspectors should have the power, without
reference to the courts, to issue a formal improvement notice to
an employer requiring him to remedy particular faults or
institute a specified programme of work within a stated time
limit.’ (Cmnd 5034, para 269). ‘The improvement notice would
be the inspector’s main sanction. In addition, an alternative
and stronger power should be available to the inspector for use
where he considers the case for remedial action to be
particularly serious. In such cases he would be able to issue a
prohibition notice.’ (Cmnd 5034, para 276). These
recommendations were implemented by the provisions of the Health
& Safety At Work Act 1974. The relevant provisions are as
follows.
- HSWA sections 2 to 9 impose
a number of general duties on employers etc.
- HSWA section 33(1)
provides:
(1) It is an
offence for a person-
(a) to fail
to discharge a duty to which he is subject by virtue of sections 2
to 7;
(b) to
contravene section 8 or 9…
- HSWA section 21 provides:
If an
inspector is of the opinion that a person-
(a) is
contravening one or more of the relevant statutory provisions; or
(b) has
contravened one or more of those provisions in circumstances that
make it likely that the contravention will continue or be
repeated,
me may serve
on him a notice (in this Part referred to as ‘an improvement
notice’) stating that he is of that opinion, specifying the
provision or provisions as to which he is of that opinion, giving
particulars of the reasons why he is of that opinion, and
requiring that person to remedy the contravention or, as the case
may be, the matters occasioning it within such period (ending not
earlier than the period within which an appeal against the notice
can be brought under section 24) as may be specified in the
notice.
- HSWA section 24 provides
that a person on whom an improvement notice is served may appeal
to an employment tribunal, which may either cancel or affirm the
notice.
- HSWA section 53(1)
provides:
- In this Part, unless the
context otherwise requires-
‘the
relevant statutory provisions’ means-
(a)
the provisions of this Part and of any health and safety
regulations; and
(b)
the existing statutory provisions.
- HSWA section 33(1)(g)
provides that it is an offence for a person to contravene any
requirement of an improvement notice.
- In summary the scheme under
the Health & Safety at Work Act is as follows:
- HSWA creates a number of
substantive offences, including the offences of failing to
comply with sections 2 to 9.
- Failure to comply with
e.g. sections 2 to 9 also entitles the HSE to serve an
improvement notice.
- It is not a precondition
to a prosecution for a substantive offence under e.g. sections
2 to 9 that the HSE first serves an improvement notice.
- Where an employer fails
to comply e.g. with sections 2 to 9 the HSE can either
prosecute for the substantive offence or serve an
improvement notice or do both simultaneously.
- Where the HSE serves an
improvement notice, the person on whom it is served can appeal
against it to an employment tribunal, which may either affirm
or cancel it.
- Where the person fails to
appeal against an improvement notice or his appeal is
unsuccessful and where he fails to comply with the
requirements of the notice, he commits an offence independent
of and in addition to the substantive offences elsewhere in
the Act (including those referred to above).
- In summary, there are two
interlinked but independent enforcement procedures.
- The contrast between the
two statutory regimes highlights the more flexible powers the
HSE inspectors have at their disposal to respond to offences.
Although the contrast does not directly assist in answering
Question 4, it suggests that the draftsman of the Care Home
Regulations intended to confer on the Commission a degree of
flexibility in the case of irremediable breaches by conferring
on the Commission the power to bring a prosecution in respect of
the original act and omission following the service of a
statutory notice and the consideration of any representations
the provider chooses to make.
CONCLUSIONS
- The regulations appear to
have given the Commission a novel power in respect of ‘irremediable’
breaches. The power is constrained by the right of the provider
to make representations and its exercise will be susceptible to
judicial review. It can be expected that where the Commission
seeks to exercise the power by bringing a prosecution, providers
may in the first instance seek a judicial review of the decision
to prosecute.
Michael Curtis,
June
2005.
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