Many working in the care industry don’t know that it can be a criminal offence to supply false or misleading information. The offence is serious and can lead to prison sentence of up to two years. Regulatory law specialist Charlotte Ellis explains the offence and how not to fall foul if it.
Why is it an offence for a care provider to provide false or misleading information?
The law came into force following a Public Inquiry into Mid Staffordshire NHS Foundation trust. In February 2013 the inquiry recommended a criminal offence be established. The Government accepted the recommendation. This led to the Care Act 2014 coming into force.
What is the offence?
The offence falls under section 92 of the Care Act 2014 and defines how a person or organisation commits an offence. Namely, where a care provider supplies, publishes or otherwise make available information that is false or misleading?
Which bodies or organisations are affected by this offence?
Section 92 of the Care Act 2014 applies to public bodies that provide health services or adult social care in England. Examples of such bodies are as follows:
- NHS Trusts & Foundation Trusts;
- Local authorities;
- GP practice’s, whether sole practitioners or partnerships (and whether they have entered into personal medical service or general medical service contracts with NHS England);
- Others who provide health services or adult social care on behalf of a public body or where it is funded by the NHS.
Are the any persons or agencies exempt from Section 92 of the care Act 2014?
Yes, there are some exempted organisations. For example, those who provide care by an establishment or agency registered with Her Majesty’s Chief Inspector of Education, Children’s Services and Skills.
What is meant by the term “information”?
Subsection 1 (b) of the act confirms that the information only relates to that which care providers are legally obliged to supply. This can be either by statute or by another legal requirement such as a contractual requirement.
An example of the type of statutory information supplied as information required in accordance with Section 35A of the Medical Act 1983 to provide information to the General Medical Council. If that GP Practice provides false or misleading information, it could be guilty of the offence in question.
Contractual information could include information required to be supplied by the provider of health services. For example within a term in its “commissioning contract” with a clinical commissioning group.
Can individuals be found guilty of an offence of providing false or misleading information?
The offence applies to the care provider as a corporate body. However, anybody working within the care industry such as organisations can also be prosecuted for the offence.
Section 94 states that if an offence is committed by the corporate body and it is proved that the offence has been committed with the consent or connivance of an individual, then the individual is also guilty of the offence. An individual would be a director, manager, secretary or a person purporting to be acting in such a capacity.
What are the penalties for providing false or misleading information?
The offence is an either way offence. This means it can be dealt with in either the magistrates or crown court. In the magistrates court the maximum sentence is a fine. For more serious offences dealt with in the crown court the maximum sentence could be up to 2 years imprisonment.
In addition, the court can also imposes other sanctions such as;
- A Remedial Order – requires requiring the care provider to take specified steps to remedy one or more of the following:
- the conduct specified in section 92(1),
- any matter that appears to the court to have resulted from the conduct,
- any deficiency, as regards the management of information, in the care provider’s policies, systems or practices of which the conduct appears to the court to be an indication.
In making such an order the court will take into account evidence and representations made by the defence and prosecution. The court also sets time limits as to when the order is to be satisfied.
- A publicity order, requiring the care provider to publicise in a specified manner:
- Particulars of the offence it has been convicted of.
- Details of any fine and remedial order imposed.
Failure to comply with either of the above orders is a separate criminal offence.
Are there any defences available either to the care provider alleged to have committed an offence under Section 92 or 94 of the Care Act 2014?
Yes, there is a “due diligence” defence. This means that where the accused can demonstrate that they took all reasonable steps and exercised all due diligence to prevent the provision of false or misleading information.
What should you do if prosecuted?
First, you should seek legal assistance. This is because your solicitor can advise you further as to whether you have a defence. They will also gather evidence in support of a defence or material which will assist in mitigation. Your solicitor can also assist you in relation to obtaining funding for your case. In some cases, Legal Aid may be available or alternative sources of funding via insurance policies.
If you find need any further information, then please contact us.
Charlotte is an experienced regulatory lawyer with who acts regularly for professional clients. These include doctors, nurses and other healthcare professionals and other regulated professionals. She has extensive expertise in acting for professionals in relation to regulatory fitness to practise matters, disciplinary investigations, inquests and criminal proceedings.
To contact Charlotte directly, please email charlotteellis@burtoncopeland.com or call her on 0161 827 9500