Brooklyn House Ltd, a care home providing care to elderly and vulnerable adults, was convicted of three offences contrary to the Care Standards Act 2000 (the Act) and the Care Homes Regulations 2001 (the Regulations). This case concerned an appeal by Brooklyn House Ltd (B) against its conviction.
One conviction was for breach of regulation 12 (1), a failure to have prescribed medicines available at the prescribed times. The other two offences were for breaches of regulation 13(2) in that B failed to make arrangements or put in place procedures for the recording, handling safe keeping and safe administration and disposal of medicines. By section 23 of the Act, the Secretary of State for Health is required to publish national minimum standards which are to be taken into account in proceedings relating to offences under the Regulations. These standards require policies and procedures to be in place for the administration of medicines, and records to be kept of the medicines required by each service user. They also require that statutory and professional standards are adhered to in relation to the handling of medicines.
In an unannounced inspection and medication audit of the home by the Commission for Social Care Inspection (CSCI) it was discovered that records in relation to the administration of medicines were inaccurate and in one case medication had not been administered at all. There were numerous omissions in the Medication Administration Record (MAR) which was the working document used by B Ltd for recording the medicines administered by staff to service users.
The court held that the offences created by regulations 12(1) and 13 (2) were offences of strict liability and therefore it did not matter whether the home intended or were aware of their failings. The issue was simply whether what they did or failed to do was a breach of the Regulations.
What was proper provision should be judged by the national minimum standards published in accordance with section 23. In determining whether “proper arrangements” had been made the court considered it was right to look at the outcome of those arrangements. Determining the outcome and therefore whether the arrangements were “proper” was an issue of fact and an appeal against a finding of fact was not available in the procedure applicable to this case.
B had also appealed against the costs awarded by the court at the conclusion of the trial and submitted that they were “grossly disproportionate” to the penalty imposed. The CSCI argued that B Ltd had handled the matter in a highly contentious manner resulting a three day contested hearing and that the award of costs was fair and proportionate. It had also been necessary to instruct leading counsel on B’s submission that CSCI had no authority to prosecute, which had taken time and expense. The appeal against the original costs order was rejected.
This case tells us that although a breach of the Regulations may trigger enforcement action or even constitute a crime, there is nothing in the CSA 2000 that requires the national minimum standards be complied with. However, under s23 of the Act, the standards must be taken into account when certain decisions are made such as a decision by the CSCI to bring proceedings in relation to a breach of the Regulations. The role of the court is not to ask whether the standards have been breached but instead to take them into account in deciding whether proper care provision has been made e.g. for the health and welfare of service users.