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Health and safety
The law has changed, are you ready?

As most care professionals know, the Care Quality Commission’s extensive new powers kicked in on 1st April 2015, ushering in what some commentators believe will be a ‘police state’ era for the care sector. Importantly, there has been a shift in the regulator’s areas of responsibility, which includes health and safety. These changes will have significant, lasting implications for care businesses. David Waters explains more.

Previously, the Health and Safety Executive (HSE) inspected and enforced health and safety in care homes owned or run by local authorities, prosecuting those it found to be in breach. In March 2015, the Meppershall Care Home in Bedfordshire and its former boss were fined nearly £337,000 after an elderly resident fell from a hoist and died after nurses failed to strap her in properly. Other care homes, such as those privately owned or run, fell under the jurisdiction of local authorities.

What’s changed?

Under the new rules the Care Quality Commission (CQC) is, of course, now the lead inspection and enforcement body for health and safety in relation to patients and service users cared for by all CQC registered care businesses, including care homes.

Confusingly however, when it comes to health and safety matters involving workers, visitors and contractors – it is the HSE and local authorities which are now the lead inspection and enforcement bodies.

There will also be some occasions where investigations will be conducted jointly by the CQC and the HSE. For example, if a care provider should be registered with CQC but fails to do so the CQC would consider its failure to register, while the HSE or local authority would address the specific non-compliance issues.

What does this mean for care homes?

For care homes, instead of having one regulator to satisfy when it comes to health and safety they will now have two, possibly even three. In theory, this means two or three probable sets of goalposts, more administrative paperwork and, most importantly, greater demands on the time of hard pushed care managers.

In practice however, the Government has cut HSE funding by as much as 40% in the last few years, drastically reduced the number of inspections and slashed local authority budgets. As such, although there is no excuse for not complying with health and safety regulations, only time will tell how many care homes will fall foul of these cash-strapped regulators.

However, be warned. If care homes are shown to have breached health and safety rules the consequences can be severe, be it at the hands of the CQC, HSE or local authorities.

Penalties for non-compliance

The CQC’s new powers include a new enforcement policy, with which many care home managers and owners will be familiar. This allows it to issue penalty notices at will and prosecute care businesses without warning. Care homes with serious or repeated health and safety failings can expect heavy fines or even closure.

While the CQC often gives care homes a chance to rectify minor offences, these are likely to downgrade their rating under the regulator’s new obligatory four-tier rating system. If care homes receive a poor ‘score on the doors’ rating this is clearly not good for business, especially combined with potential negative press coverage.

Similarly, the HSE’s Government funding cuts mean it now seeks to recover its costs from care homes which are found to be in breach of health and safety laws. It charges a ‘fee for intervention’ (FFI), which is based on the amount of time a HSE inspector has to spend identifying the breach, helping care homes put it right, investigating and taking enforcement action. This may include writing a lengthy health and safety report.

The FFI hourly rate is £124 and, if the HSE finds a health and safety breach, this is applied retrospectively from the time inspectors began their inspection. When considering all of the above, it is easy to see how the hours can stack up, potentially resulting in an FFI of thousands of pounds.

Local authorities also have enforcement and prosecution powers to address occupational health and safety risks and ensure compliance with the law.

Identify and mitigate health and safety risks

The costs of fighting a prosecution and paying any potential fines for health and safety breaches can be ruinous to care providers. A good, comprehensive insurance policy may provide some protection (speak to your insurance broker), but it is far better to exercise extreme due diligence when to comes to health and safety.

This starts with a full health and safety risk assessment to identify any possible hazards in a care home and how these might be mitigated. If care home owners or registered care managers do not feel comfortable with this, it is well worth appointing a professional risk consultancy. Alternatively, some insurance brokers provide free health and safety assessments as part of their service.

Typical hazards in care homes include treatment and service delivery, moving and handling, slips, trips and falls, as well as violence, aggression or challenging behaviour when it comes to residents. Care homes are also advised to assess general premises maintenance responsibilities and staff training, especially relating to resident care. There are also simple checks that can be undertaken, such as ensuring that lift health and safety certificates are up-to-date.

Care homes must assess these areas, implement rigorous health and safety processes and procedures, then ensure that staff follow them in order to satisfy regulators.

Guidance for care homes

The CQC and HSE have produced practical advice and guidance for care home owners and registered care managers. They are available from the CQC and HSE websites.

David Waters is Chairman of Howden Care, which recently acquired CHIS and PrimeCare.     

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