A G E N D A 1. APOLOGIES FOR ABSENCE Ian Metcalfe 2 ...
A G E N D A 1. APOLOGIES FOR ABSENCE Ian Metcalfe 2 ... A G E N D A 1. APOLOGIES FOR ABSENCE Ian Metcalfe 2 ...
An important objective of imposing a penalty is deterring similar conduct in future. The amount ofany penalty must be sufficient to ensure that it will act as an effective incentive to compliance,having regard to the seriousness of the breach. The factors Monitor will take into account,therefore, include amongst other relevant considerations:the seriousness of the breach;ensuring provider compliance;deterring similar breaches by other providers; andthe proportionality of a variable monetary penalty to the nature of the breach.The factors relevant to each of these considerations are described in section 3.3 above.As well as these matters, Monitor will consider any relevant aggravating and mitigating factors.Penalties are likely to be higher when we identify one or more aggravating factors. Aggravatingfactors could be, but are not limited to, where:Monitor has previously imposed a discretionary requirement on, or accepted anenforcement undertaking from, the relevant provider concerning similar or related matters;there is a positive intent to contravene, in that the provider must have been aware, orcould not reasonably have been unaware, that its conduct would lead to a breach; ora provider has not cooperated with Monitor’s investigation.Penalties are likely to be lower when we identify relevant mitigating factors. Mitigating factorscould be, but are not limited to, where:a provider takes timely and effective action to remedy the effects of a breach, includingaction to restore any actual or potential harm caused;a provider self-reports a breach; ora provider has cooperated fully with Monitor’s investigation and requirements.Page 23 of 50
3.5 Enforcement undertakingsA provider may offer an enforcement undertaking during the course of a formal investigation.Monitor may accept the undertaking if we have reasonable grounds to suspect that the provideris, or was, in breach of a licence condition, the requirement to hold a licence, or a requirement tosupply Monitor with information. An enforcement undertaking may include a commitment to takesteps to secure that the breach in question does not continue or recur. A provider may alsoundertake to restore the position to what it would have been had the breach in question notoccurred, or action (including the payment of a sum of money) to benefit any other licence holderor commissioner affected by the breach.The decision whether to accept an enforcement undertaking, rather than to continue aninvestigation and potentially impose discretionary requirements, is at Monitor’s discretion and willdepend on the circumstances. In considering an enforcement undertaking offered by a provider,Monitor intends to take into account the factors outlined in section 3.3 above.Agreed enforcement undertakings may be less burdensome on the provider than thediscretionary requirements which Monitor would otherwise have imposed. This is in recognition of:the cooperation demonstrated by that provider; andthe fact that Monitor is then able to devote resources to other matters on the basis thatMonitor can stop pursuing an investigation or parts of an investigation.We intend to maintain a register of enforcement undertakings. We are likely to require providersthat have given undertakings report on compliance. Any reporting commitments will be agreed aspart of the agreement of the enforcement undertaking as a whole.If the relevant provider complies with the enforcement undertaking, Monitor cannot take furtheraction in relation to the relevant breach or suspected breach. For example, having acceptedundertakings which are then complied with, Monitor cannot seek to impose additionaldiscretionary requirements or to revoke the provider’s licence in relation to the same breach.Failing, or partially failing, to comply with an enforcement undertaking accepted by Monitor mayresult in the imposition of a discretionary requirement.Page 24 of 50
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- Page 82 and 83: EnforcementGuidance28 March 2013Mon
- Page 84 and 85: ForewordThe Health and Social Care
- Page 86 and 87: 1 IntroductionThe Health and Social
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- Page 92 and 93: Competition lawMonitor has concurre
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- Page 102 and 103: Deterring similar breaches by other
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- Page 124 and 125: Non-compliance penaltiesA provider
- Page 126 and 127: AnnexMonitor’s powers of enforcem
- Page 128 and 129: a) has provided, or is providing, a
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3.5 Enforcement undertakingsA provider may offer an enforcement undertaking during the course of a formal investigation.Monitor may accept the undertaking if we have reasonable grounds to suspect that the provideris, or was, in breach of a licence condition, the requirement to hold a licence, or a requirement tosupply Monitor with information. An enforcement undertaking may include a commitment to takesteps to secure that the breach in question does not continue or recur. A provider may alsoundertake to restore the position to what it would have been had the breach in question notoccurred, or action (including the payment of a sum of money) to benefit any other licence holderor commissioner affected by the breach.The decision whether to accept an enforcement undertaking, rather than to continue aninvestigation and potentially impose discretionary requirements, is at Monitor’s discretion and willdepend on the circumstances. In considering an enforcement undertaking offered by a provider,Monitor intends to take into account the factors outlined in section 3.3 above.Agreed enforcement undertakings may be less burdensome on the provider than thediscretionary requirements which Monitor would otherwise have imposed. This is in recognition of:the cooperation demonstrated by that provider; andthe fact that Monitor is then able to devote resources to other matters on the basis thatMonitor can stop pursuing an investigation or parts of an investigation.We intend to maintain a register of enforcement undertakings. We are likely to require providersthat have given undertakings report on compliance. Any reporting commitments will be agreed aspart of the agreement of the enforcement undertaking as a whole.If the relevant provider complies with the enforcement undertaking, Monitor cannot take furtheraction in relation to the relevant breach or suspected breach. For example, having acceptedundertakings which are then complied with, Monitor cannot seek to impose additionaldiscretionary requirements or to revoke the provider’s licence in relation to the same breach.Failing, or partially failing, to comply with an enforcement undertaking accepted by Monitor mayresult in the imposition of a discretionary requirement.Page 24 of 50
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