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Regulator shows sharper teeth

A recent prosecution by the CQC has highlighted how the inspectorate is responding to new Regulations and that the sector needs to be fully aware. Sarah Knight and Stuart Marchant explain more.

In June 2016, a not-for-profit care provider was fined £190,000 under the new Sentencing Council’s Guideline on Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences that took effect on 1st February 2016. The prosecutor was the Care Quality Commission (CQC); whose costs came to an additional £16,000.

The individual care home at the heart of the prosecution had an excellent reputation with service users and their families and was well thought of by local healthcare professionals. There were (and remain) no safeguarding issues. Nevertheless, the fine imposed was substantial.

The story acts as a salutary warning to all care providers. We each know that accidents can happen when you aren’t expecting them. Now more than ever, the penalty imposed by the CQC when accidents happen can drastically impact on a business.

What went wrong?

On 30th April 2015, whilst two healthcare assistants who were preparing him for a shower, a service user fell forward onto the floor after tipping out of his chair. He sustained a broken neck. Very sadly, he died despite attempts at resuscitation.

The care provider was charged with a single offence of failing to discharge its duty under Regulation 12(1) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations).

These Regulations took effect on 1st April 2015 and coincided with a transfer of enforcement responsibility for health and safety incidents in the health and social care sector from the Health and Safety Executive (HSE) to the CQC.

The allegation was that, whilst carrying out a regulated activity of providing accommodation for persons requiring nursing or personal care, the service provider failed to provide safe care and treatment resulting in avoidable harm or a significant risk of exposure to avoidable harm to a service user. The failure to discharge the duty imposed under Regulation 12(1) is a criminal offence pursuant to Regulation 22(2) and is liable to a penalty under Regulation 23 of the Regulations.

CQC’s approach to the investigation

The prosecutor reiterated that the reason for the criminal status of the allegation was that the duty to provide safe care and treatment is a fundamental and minimum standard expected of care providers under the new Regulations. It is one of a series of fundamental standards introduced following the Mid Staffordshire NHS Foundation Trust inquiry. To give ‘bite’ to this submission the Prosecutor referred to the new sentencing guidelines under which there is an unlimited fine for the most serious cases. The offences are summary only. The category of fine in this case was between £300,000 and £1.3m.

The CQC adopted the approach taken by the Health and Safety Executive in such cases. A thorough investigation was undertaken. Despite positive reporting by the CQC itself on previous inspections in relation to care provision, the HSE-style investigation included considerable scrutiny of many peripheral issues relating to the service provider’s systems and practices.

During the course of its investigation, the CQC considered that a restriction should be imposed on the service provider’s registration. After lengthy submissions and the provision of copious documents to the CQC, that proposal was not upheld.

In addition to its own investigation, a report was requested from the Health and Safety Executive which was relied upon in court. The report confirmed that the man had not been seated far enough back in the shower chair and that the lap belt used was not fastened securely. Furthermore, the castors of the chair were in the ‘push’ position. Despite having two care staff with him, it was not clear how the service user came to lean forward. However, the care home had been waiting for a formal assessment of the man’s needs and had asked for him to be seen by a physiotherapist who, in turn, had referred the matter to an occupational therapist.

Naturally, there was scrutiny of the relevant records going back over many years. The CQC also submitted that falls from chairs resulting in serious or fatal injuries are not uncommon in the health and social care sector. Because of this, the Medicines and Healthcare Products Regulatory Agency (MHRA) issued safety alerts, warning the sector to be alert to the need for the correct use of posture/safety belts.

The provider was able to show that it, indeed, received the alerts and had sent them to all relevant care homes. However, it was unable to show what happened to the alerts after that.

The prosecution

This case was the first prosecution under the new CQC regime for regulating health and safety in care and hospital settings.

The case took over a year to come to fruition. During that time, the service provider did not take on any new clients, had spent many hours providing documentation, had been involved in lengthy Police and Criminal Evidence (PACE) interviews and liaison with solicitors.

The District Judge accepted that there were no aggravating features and he accepted the strong mitigation on behalf of the service, not least the service provider was able to reassure the District Judge that it had spent over £100,000 on improvement to its governance systems. A new team had also been appointed to focus on these issues.

However, despite the fact that this was a not-for-profit, charitable service, the District Judge confirmed that there was a need to ensure that a strong message was sent out to other providers.

The fine

The new Regulations introduce higher maximum penalties on conviction compared to those previously in place. Under the 2010 Regulations, the maximum fine upon conviction for non-compliance with the regulations was £50,000. However, under the 2014 Regulations, the maximum fine is now unlimited, with the courts applying guidance from the Sentencing Council.

The new Sentencing Guidelines in question relate to the new Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences – Definitive Guideline issued by the Sentencing Council. This Guideline, in broad terms, recommends a sentencing range and, within that, a ‘starting point’ for the court to consider based on:

  • The level of culpability of the provider.
  • The seriousness, and likelihood, of the harm risked – note it is not necessary for harm to have actually occurred.
  • The offender’s turnover.
  • The Guidelines establish how the Court should interpret culpability as follows:
There are a number of points that the sector should take away from this case. Firstly, the CQC has taken over from the HSE as investigator and prosecutor of health and safety incidents in the care sector.

Very high

Deliberate breach of or flagrant disregard for the law.

High

(a)        Offender fell far short of the appropriate standard; for example, by:

  • Failing to put in place measures that are recognised standards in the industry.
  • Ignoring concerns raised by employees or others.
  • Failing to make appropriate changes following prior incident(s) exposing risks to health and safety.
  • Allowing breaches to subsist over a long period of time.

(b)        Serious and/or systemic failure within the organisation to address risks to health and safety.

Medium

(a)        Offender fell short of the appropriate standard in a manner that falls between descriptions in ‘high’ and ‘low’ culpability categories.

(b)        Systems were in place but these were not sufficiently adhered to or implemented.

Low

(a)        Offender did not fall far short of the appropriate standard; for example, because:

  • Significant efforts were made to address the risk although they were inadequate on this occasion.
  • There was no warning/circumstance indicating a risk to health and safety.

(b)        Failings were minor and occurred as an isolated incident.

Having decided on the appropriate level of fine using these factors and taking into account the particular aggravating and mitigating factors of the individual case, the Guidelines require the court to take a step back and check whether the proposed fine is proportionate to the offender’s overall means or otherwise requires some adjustment, before giving any further reductions to reflect any assistance provided to the prosecution and/or for guilty pleas.

Lessons learned

There are a number of points that the sector should take away from this case.

Firstly, the CQC has taken over from the HSE as investigator and prosecutor of health and safety incidents in the care sector. This was an important outcome of the regulatory changes and reflects negative findings in the Francis report into Mid Staffordshire NHS Foundation Trust.

Also, there are new sentencing guidelines for these offences, which are scarily high by most standards.

The CQC has said that there are many more of these types of prosecutions to come and more are being currently investigated. Strategy for providers in such cases is incredibly important and having good legal advice is key. A lot can be done by providers to mitigate the huge fines but providers need to act quickly in response to incidents.

The ability to effectively respond to the CQC, and ultimately the Court, is rooted in a need to learn and take action from incidents, and also to avoid incidents in the first place by having effective risk assessments and training in place.

CQC’s health and safety powers cross over with other investigations including safeguarding, commissioning suspensions, inquests, police powers to investigate corporate manslaughter and neglect, and indeed the CQC’s other powers. Providers need to take incidents very seriously.

Sarah Knight is an Associate at Bevan Brittan. Sarah acted for St Anne’s Community Services sarah.knight@bevanbrittan.com

Stuart Marchant is a Partner at Bevan Brittan stuart.marchant@bevanbrittan.com 

Twitter: @BevanBrittanLLP

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