Pump Court Chambers

Judge rejects Health & Safety sentencing guidelines in a non-registration case

News 12th September 2019
Mark Ruffell

In a case involving a slimming clinic that had traded without being registered with the CQC, the CQC had argued that the Sentencing Council’s ‘Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline’ should apply. CQC had told District Judge Woollard who was sitting at Chelmsford Magistrates’ Court, that two other District Judges in two previous cases had accepted their submissions that they applied in cases involving non-registration.

Defence Counsel Mark Ruffell, who was instructed by Joanna Sharr of Ridouts Professional Services PLC, had argued that the guidelines provided some useful factors to consider, but they failed to properly address culpability in a case of non-registration through ignorance of the law. The guidelines also failed to recognise that there is an inherent risk of harm that exists in healthcare cases, through side effects, infection or shock, risks which patients accept through informed consent. In health and safety and in food safety cases the risk of harm is meant to be non-existent.

The case involved a slimming clinic company that had been registered with CQC’s predecessor the Healthcare Commission, but it was then told that registration was unnecessary and it had its fees refunded. The company had assumed that registration was not required thereafter. In 2018, CQC informed the company that registration had been required for slimming clinics from 2013. The company argued that it was ignorant of this fact and then sought to become registered. Due to the age of the directors, the company decided to cease trading. CQC then initiated criminal proceedings.

In its application of the ‘Health and Safety’ guidelines, CQC had sought to persuade the Judge that a fine approaching £100,000 should be imposed on the company with additional fines imposed on the two Directors.

The Judge rejected the CQC’s argument. He stated that he was aware that there had been criticism from the Court of Appeal of using sentencing guidelines in cases for which they were not designed. Where there were no guidelines, then ordinary sentencing principles should apply. He viewed registration as an administrative function of a regulator. The failure to get registered could not be equated to the issues that arise when health and safety regulations are breached.

In sentencing the Company, the Judge imposed a fine of £10,000 and he imposed smaller fines on the two Directors. After the hearing Mark Ruffell said: ‘This just shows the dangers of misapplying the sentencing guidelines. The results for the company and the Directors had CQC’s submissions not been challenged would have been wholly disproportionate.’  Joanna Sharr stated “At a time when the CQC is increasing the number of prosecutions it brings against health and social care providers, this case should act as a salutary reminder to CQC of the importance for prosecutors to exercise proportionality in their approach to prosecutions.  It was inappropriate for CQC to try and seek a higher fine for our Client for what was a regulatory breach by arguing that the health and safety guidelines were applicable, particularly when the Court of Appeal had already made clear to prosecutors that sentencing guidelines should only be applied to the types of offences for which they were developed.  Our Client was very concerned by the approach taken by CQC to the prosecution and pleased that the fine imposed by the Court was proportional to the offence.”

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