Section 23: Care provider offence: penalties
247.Section 23 makes provision for the penalties that can be imposed by the courts in respect of a care provider that has been convicted of the offence established in section 21. The offence will be triable either way, that is in either a magistrate’s court or the Crown Court.
248.Subsection (1) provides for the court to impose a fine, irrespective of which court the case has been tried in.
249.Subsection (2) provides for a court to make remedial orders and/or publicity orders, either instead of or as well as imposing a fine. This approach again mirrors that adopted by the CMCHA 2007. There is a precedent for providing for such orders in relation to health and social care in section 93 of the Care Act 2014, which makes provision for both remedial orders and publicity orders as penalties available to the court where an organisation has been convicted of the offence of providing false or misleading information.
250.Subsection (3) defines a “remedial order” as an order requiring the care provider to take specific steps to remedy any or all of the following:
the breach of the care provider’s relevant duty of care;
any matter the court considers to have resulted from the breach and to be connected with the ill-treatment or wilful neglect;
any deficiencies in the care provider’s management or organisational policies, its systems or its practices of which the breach appears to be an indication.
251.The intention is to make provision to oblige a care provider, against which such an order has been made, to take action to put right the specified management or organisational failures so that the offence cannot be repeated.
252.Subsection (4) defines a “publicity order” as an order requiring the care provider to take specific steps to publicise the following:
the fact that the care provider has been convicted of the offence;
the particulars of the offence, i.e. what the care provider did, or failed to do, that resulted in the conviction;
the amount of any fine imposed on the care provider by the court;
the terms of any remedial order made by the court against the care provider.
253.The intention here is to make provision to oblige a care provider to make public the fact that it has been convicted of the offence, and the penalties imposed on it as a result. A publicity order is intended to make it impossible for a care provider to avoid being open and honest about a conviction for this offence.
254.Subsection (5) makes further provision about remedial orders, specifying that they can only be made if the prosecuting authorities make a specific application to the court, which must include the terms of the proposed order. In addition, when deciding on the terms of the order, the court must take into account any representations made or evidence submitted to it as to what those terms should be. Finally, any remedial order must include a time period within which the actions specified in the order must be completed. These requirements mean that a remedial order will always be tailored to the particular circumstances of the case, and will ensure that necessary actions to put right the failures identified are completed timeously.
255.Subsection (6) provides that a publicity order must include a time period within which the actions specified in the order must be completed. This is to ensure that the care provider complies with the provisions of the publicity order within a reasonable period.
256.Subsection (7) provides that failure to comply with the terms of either a remedial order or publicity order is itself an offence, punishable by the imposition of a fine. The objective is to ensure that the care provider complies with any remedial order or publicity order, or risk further legal action against it.
257.Subsection (8) provides for the maximum amount of a fine that can be imposed under subsections (1) and (7) to be contingent on whether section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has come into force at the time of the offence. If not, the references in those subsections to the sanction of a fine on summary conviction are to be taken as references to a fine not exceeding the statutory maximum.
