We may prosecute where a provider has caused avoidable harm or failed to meet standards or regulations. If we make a final decision not to prosecute, you may be able to ask us to look at this decision again. This is sometimes called the victim’s right to review.
What we prosecute
We can prosecute when:
- a registered person has caused avoidable harm to someone who uses their service or has put them at risk of harm
- there has been a breach of the fundamental standards that amounts to a criminal offence
- a registered person has failed to follow legal requirements
- someone has been running a health or social care service without registering with us
We can only prosecute if our case meets both of the following conditions:
- we have enough evidence to prove the offence to a criminal standard
- prosecution is in the public interest
Types of decision we can review
You can ask for a review when:
- we have made a final decision not to prosecute
- we have started a prosecution but we have discontinued it or withdrawn it at court
A 'final decision not to prosecute' is one we have made after applying the full code test for Crown Prosecutors. We look at whether cases meet this test before we go ahead with a prosecution.
You cannot ask for a review when:
- we have decided not to start an investigation or not to continue one
- it's more than 3 years since the incident took place - this is the legal limit in which we can bring a prosecution
What to do if your concern is about something else
If you want to raise a concern about something that does not meet these criteria, you may be able to make a complaint instead.
Find out how to make a complaint
Check if you are eligible
Not everyone can ask us to review a decision not to prosecute. You can only ask us to review our decision if you are the 'victim' in the case.
What we mean by 'victim'
We consider you to be the victim if you are one of the following.
1. A person using the service who has experienced avoidable harm or has been put at significant risk of avoidable harm. This may be because the service has failed to:
- provide safe care or treatment
- safeguard people using the service from abuse and improper treatment
- meet nutritional and hydration needs
2. A family member of someone who has died. This could mean:
- the person's parents (if they are under 18)
- their spouse, civil partner or the person they lived with before, at the time of or after the incident
- their children
- another close relative
3. The family spokesperson or an advocate of a person who uses services. This may be because they have a disability. Or it could be because they lack capacity to make decisions or advocate for themselves.
You will already know if we consider you to be the victim. This is because we will have written to you to tell you our decision not to prosecute.
You must make your request within a certain time
When we make a final decision not to prosecute, we write to the victim, their family spokesperson or their advocate. At this point we will also explain you can ask for a review.
If you decide to ask for a review:
- it's best to contact us straight away - at most, you should contact us within 10 working days of when we write to you
- we can consider requests up to 30 days after our decision letter. But a delay beyond 10 days may affect whether we agree to review our decision
- after 30 days, we only consider requests in exceptional circumstances. We may ask you to explain why there has been a delay
What we do after we receive your request
A suitably qualified person will review the case. This will be someone who is independent from the original decision.
This person will look at the information we had when we made the original decision. They will use this to decide if the decision was reasonable.
Possible outcomes
- The independent decision maker concludes the decision was not reasonable. If this happens we will consider prosecuting.
- They become aware of evidence that was not available to the original decision maker. In this case they will pass it to the investigation team.
- If either of these things happens and the time limit for prosecution runs out meaning that we cannot prosecute, we will explain this and apologise . We will also commit to learning from this to improve our handling of future cases.
- They conclude the decision was reasonable. In this case our decision not to prosecute will stand.
How long it's likely to take
After we receive your request we aim to:
- complete the review within 30 working days
- write to you to let you know the outcome within 10 working days of when we've completed it
If it's a complicated or sensitive case, we may need more time to carry out our review. If we think this is likely, we will let you know and we will provide updates when needed.
What to do if you want to take it further
Once we have completed the review, the review decision is final. If you wish to challenge the decision you can:
- take independent legal advice
- contact the Local Government and Social Care Ombudsman
If the case involves a death or serious injury, we may offer to meet victims' families to explain our decision.