A G E N D A 1. APOLOGIES FOR ABSENCE Ian Metcalfe 2 ...

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Deterring similar breaches by other providersIn order to deter similar breaches by other providers, Monitor will consider how the action we takein one case might also affect the incentives on other providers to comply. For example, Monitormay find it appropriate to adjust the severity of the requirements we impose according to:the extent to which the type of breach under consideration is thought to be widespread inthe health care sector;the extent of harm the type of breach has caused (or is capable of causing) to health careservice users; orwhether previous sanctions have been effective or ineffective in deterring others fromtaking similar action.If Monitor considers that it is necessary to adjust the proposed discretionary requirements in orderto deter similar breaches by other providers, it is likely that Monitor would impose (or increase) avariable monetary penalty. However, in appropriate cases the objective of deterring similarbreaches by other providers may be met through the imposition of, or modifications to, acompliance requirement or a restoration requirement.Restoring the position to what it would have been without the breachMonitor will consider whether it would be desirable and feasible to take steps to restore theposition to what it would have been without the breach. If so, Monitor may impose a restorationrequirement.Restoration could require a provider to give up any gains it has made from a breach and restorethe position of those who have suffered harm as a result. Restoration requirements may befinancial or non-financial.Where a breach of a regulatory requirement causes harm to another party, Monitor considers thata restoration requirement may have a number of advantages. It might be used to ensure thatparties do not profit from a breach, and it may deter others from similar conduct in future. It mayalso compensate any affected parties.However, there may be some practical limits to Monitor’s ability to impose restorationrequirements. For example, it may be difficult to establish which parties (whether individuals orcategories of parties) have been harmed by a breach, or the extent of any such harm.Page 21 of 50
ProportionalityMonitor will ensure the action we take is proportionate and reasonable in the circumstances athand, and that we balance the need to deter harmful conduct with the need to ensure thecontinued provision of health care services to health care service users.Before imposing a requirement, Monitor therefore proposes to consider:the specific circumstances of the relevant provider;how any requirement is likely to affect the provider’s delivery of health care services; andIn particular, Monitor will consider the impact of a particular requirement on the provider’s futurefinancial viability. We propose to consider factors such as:the cost of the requirement to the provider;the provider’s current financial position;how much the provider has gained from the relevant breach;whether a requirement is likely to cause the provider financial hardship or distress thatcould:ooothreaten service continuity; orcause further harm to health care service users by reducing competition andchoice in the market; orany wider harm to health care service users that might arise from reducing theresources available to the provider in line with our main duty.3.4 Variable monetary penaltiesThis section sets out the factors which Monitor will consider when deciding on the appropriateamount of a variable monetary penalty.Variable monetary penalties may require a provider to pay a monetary penalty to Monitor whichMonitor must pay into the Government Consolidated Fund. The variable monetary penalty mustnot exceed 10% of the provider’s turnover in England. The Department of Health has publishedits intended definition of ‘turnover’ for these purposes, which is available here.Page 22 of 50
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A G E N D A 1. APOLOGIES FOR ABSENCE Ian Metcalfe 2 ...

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