Doctors, practising privileges and CQC registration – a lawyer’s perspective

Introduction

Recently we were instructed by a doctor who had received a letter from the Care Quality Commission to say it had grounds to suspect that the doctor may have committed an offence and that the offence may be continuing. The suspected offence was carrying on surgical procedures without registration. CQC wrote to the doctor in the latter’s capacity as director of a company which had received the same letter from CQC.

The Law

The primary offence is under section 10 of the Health and Social Care Act 2008 (“section10”).

There is also an offence under section 91 related to directors who have allowed the primary offence to happen through consent, connivance or neglect.

The Circumstances

CQC had been alerted to the issue having received information from an undisclosed source.

No details were provided in the two letters other than the following simple statement:

The doctor did have practising privileges with a CQC registered healthcare provider. However, they had set up a company for the purpose of receiving payment in respect of the treatment the doctor delivered in the private hospital. Such arrangements are commonplace in the private healthcare sector.

The CQC Letter

The doctor was shocked to receive the letter which contained:
– A Caution and
– A statement that the offence could be dealt with in the Magistrates Court or the Crown Court and that if convicted the court could impose an unlimited fine and/or a sentence of up to 12 months’ imprisonment.

It is concerning that CQC issues letters like this without any prior warning and without supplying any tangible information in  support of the suspicion. Fortunately, the doctor in question had a robust disposition but they were still deeply upset and worried by the letter.

The letter offered three options:

1. Apply to CQC for registration.
2. Stop carrying on the regulated activity.
3. Make written comments about why registration was not needed.

CQC asked for a response within 28 days, although it pointed out the recipient was not obliged to respond, adding

CQC then wrote:

The Outcome

We wrote to CQC under Option 3 in clear and emphatic terms. Within 24 hours, CQC responded to say it had closed the investigation.

Food for thought

This is one of several similar cases we have had this year involving doctors working in private practice. It is clear CQC is receiving “intelligence” about doctors, most probably from competitors.

In the above-mentioned case, our client had acted appropriately and we were able to challenge CQC robustly. However, that is not always the case. In some cases, doctors who have come to us for advice have been operating in contravention of the law. This can lead to a criminal investigation and prosecution. We have also come across cases where CQC has referred doctors to the GMC, linked to its criminal investigations under section 10.

Conclusion

Before starting work in the private sector, doctors should take legal advice on the legality of the arrangements. Prevention is always better than cure. The CQC exemptions from registration in relation to doctors are technical and obscure and they warrant careful scrutiny by the doctor, ideally before starting work in the private sector.

However, if you do receive a section 10 letter from CQC, you should seek urgent legal advice to ensure you are in the best possible position to respond to CQC to mitigate the situation, as far as possible. Your professional reputation and future may well depend on it.