An Inspector calls - but which one? The roles of HSE and CQC following health and safety incidents13/03/17
The Health Service Journal reported earlier this week that Southern Health is to be prosecuted by the Care Quality Commission (CQC) after a patient sustained serious injuries falling from a roof. This will be the first time that the CQC has used its regulatory powers to pursue a criminal case against an NHS Trust.
This action serves as a stark reminder of CQC’s powers under the fundamental standards regulations in force since April 2015. The standards were designed in the wake of the Mid Stafforshire care scandal to make it easier for the CQC to bring a criminal prosecution against registered providers where care falls below the required standard. To date, prosecutions have only been directed at care home providers.
Duties owed under statue and regulations
The duties owed under health and safety legislation and under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 are very similar in effect. Section 2(1) Health and Safety at Work Etc Act 1974 requires employers to protect, so far as is reasonably practicable, the health and safety of their employees, with a matching duty under s.3(1) owed to persons not in their employment such as patients, visitors and contractors. Breach of either HSWA duty is a criminal offence, punishable with an unlimited fine, and with the potential for individual criminal liability.
The fundamental standards are designed to prevent people from receiving unsafe care and treatment and preventing avoidable harm or risk of harm. Breach of the regulations relating to quality and safety is a criminal offence and the CQC can prosecute without having to issue a warning notice.
HSE or CQC?
The 2015 Memorandum of Understanding (MoU) between the CQC, HSE and Local Authorities makes clear that the CQC is the lead inspection and enforcement body under the Health and Social Care Act 2008 for safety and quality of treatment and care matters involving patients and service users in receipt of a health or adult social care service from a provider registered with CQC. HSE and Local Authorities have those roles where providers are not registered with CQC, and for all health and safety matters involving workers, visitors and contractors, irrespective of registration.
The MoU gives a non-exhaustive list of incidents that fall to CQC and HSE/Local Authorities respectively (leaving aside potential involvement of the Police/CPS).
CQC to consider and decide the action to be taken
- a patient/service user falling from a window;
- a severe scalding of a patient/service user in a bath/shower;
- a patient/service user with a need for assistance with eating being given inappropriate food and being seriously harmed or dying from choking;
- a patient/service user who did not receive treatment in line with their care plan who died or was severely harmed as a result;
- a patient/service user being seriously injured or dying after being physically restrained by staff; and
- ill-treatment or wilful neglect of a patient/service user.
Incidents falling to HSE/Local Authorities
- circumstances where the commissioner of the service, rather than the provider, seems to have been primarily at fault;
- circumstances where the provider is not required to be registered with CQC;
- employees developing dermatitis related to glove use;
- a manual handling injury to an employee from moving ill-maintained trolleys; and
- a contractor’s tower scaffold collapses into a care home car park.
How we can help
We have supported many providers of health and social care in their dealings with regulators such as the HSE and the CQC as well as the Police. The positive impression resulting from a well-organised, confident response to an investigation can greatly assist in limiting enforcement action following a health and safety breach. We have represented clients facing investigation or prosecution for almost all of the breaches listed in the MoU, as well as for corporate manslaughter (investigated by the Police and CPS).
We provide on site representation nationally for organisations under investigation and advise on handling strategies both in relation to the investigator and assisting your communications teams in responding to press interest. If your organisation is prosecuted, we have unrivalled experience in supporting you from interview under caution, representations against prosecution, advice on plea, through to a contested trial or concluding on a guilty plea with effective mitigation to minimise the financial and reputational impact of criminal proceedings.