Caring Times- As CQC notches up its first Health and Safety prosecution, the new Health and Safety Sentencing Guidelines begin to bite

As CQC notches up its first Health and Safety prosecution, the new Health and Safety Sentencing Guidelines begin to bite

Casting our minds back to 2014, care home providers may remember talk of CQC taking on the role of prosecutor for certain health and safety matters in the health and social care sectors. Although not as widely trailed in these sectors as one might have expected, the shift in policy resulted in a new Memorandum of Understanding (MoU) between the Care Quality Commission, the Health and Safety Executive and Local Authorities (LAs) in England. The MoU came into effect in April 2015 but it was not until June of this year that the courts passed sentence in CQC’s first health and safety prosecution to reach this stage.

Which regulating body takes the lead – CQC, HSE or the relevant Local Authority?

So, as a care home provider or a healthcare provider, where do you stand in respect of health and safety investigations and prosecutions? The table below provides a breakdown as to which investigating and prosecuting body will take the lead in particular circumstances:

Type of provider Subject matter Individual involved Lead Inspecting and Prosecuting body
Adult care homes, registered with CQC Safety and quality of treatment and care Patient / Service user CQC
Healthcare services, registered with CQC Safety and quality of treatment and care Patient / Service user CQC

 

Healthcare services not registered with CQC Health and safety Patient / Service user HSE
Adult care homes with nursing not registered with CQC Health and safety Patient / Service user HSE
Public social care services not registered with CQC Health and safety Patient / Service user HSE
Adult care homes without nursing not registered with CQC Health and safety Patient / Service user Local Authorities
All health and social care providers Health and safety Worker, visitor or contractor HSE / Local Authorities (depending on the activity undertaken)

 

MoU between CQC, HSE and LAs in England

As providers will know, the MoU was put in place to reflect the introduction of the Fundamental Standards by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations). So, CQC now takes the lead in investigating and prosecuting CQC registered health and adult social care providers where a patient or service user is affected by a failure of the provider to provide safe care and/or treatment. In considering whether to prosecute, CQC must assess whether such failures resulted in the patient or service user being exposed to avoidable harm or to a significant risk of avoidable harm.

Providers will continue to be monitored by HSE and LAs who will take the lead when a health and safety matter falls within their remit. In some cases, providers may be required to deal with both CQC and HSE/LA at the same time if, for example, a CQC inspector on a routine CQC inspection identifies possible health and safety issues arising out of construction works at a care home and alerts HSE accordingly. This type of information sharing between the regulators is underpinned by the MoU which states that CQC, HSE and LAs will work collaboratively and share relevant information on incidents in each other’s jurisdiction.

Different prosecutors; same sentencing guidelines

Whether CQC, HSE or an LA brings the prosecutions, where a provider either pleads guilty or is found guilty by the court, the judge will apply the new Sentencing Council guidelines for Health and Safety offences. This “definitive guideline” applies to all organisation and offenders sentenced on or after 1 February 2016. It lays out a step-by-step process for the judge to follow in deciding what fine to impose. As is usual in all sentencing, the judge must, amongst other things, ensure that the fine is proportionate to the offender’s overall financial means, reduce the fine if the offender has pleaded guilty, consider whether the offender should also pay compensation and give reasons for his decision. The judge must also consider the culpability of the offender and the risk of harm the offender created.

Company turnover now central to the level of fine imposed

Most importantly, the judge must consider the size of the turnover of the offending provider. Where a company’s turnover is no more than £2 million, it is classed as a “Micro” company with fines for the most serious offences falling in the range of between £150,000 to £450,000. If the turnover is between £2 million and £10 million, the company is “Small”, with an upper range of fines of between £300,000 to £1.6m. “Medium” companies, with a turnover of between £10m to £50m, have an upper range of between £1m and £4m and “Large” companies with a turnover of £50 million and over, have a fine range of between £2.6m and £10m for the most serious category of offence.

Huge hike in fines following the introduction of the Sentencing Guidelines

Recent months have seen the levels of fines increase dramatically as courts apply the new guidelines. The first CQC prosecution resulted in St Anne’s Community Services being fined £190,000 in June for a breach of Regulation 12(1) of the 2014 Regulations, following the death of a 62 year old man who broke his neck in a fall from a shower chair. There were a number of mitigating factors in this case with the judge reducing the fine for an early guilty plea and to reflect the charitable status of the provider, amongst other reasons. The relevant fine range however was £300,000 to £1.3m. Outside of the health and care sector, Network Rail was fined £6m, reduced to £4 million for a guilty plea following the death of a woman at a level crossing. Merlin, the owners of Alton Towers was fined £5 million following an accident on a ride which resulted in victims losing limbs.

Just as the MoU was one of the measures taken to meet the Government’s policy objective of closing the ‘regulatory gap’ identified by the Francis Report, so the Sentencing Guidelines aim to meet a policy objective: to bring home to the owners and shareholders of providers the importance of complying with health and safety requirements. Higher fines may well do this. But equally important is proportionate and supportive engagement with providers by the regulator, be it HSE, CQC or the Local Authority. Likewise, when providers face health and safety enforcement action, they must engage early, positively and robustly with the regulator.

As the new sentencing guidelines continue to bite, providers would be well advised to review their health and safety compliance, taking early legal advice where they themselves identify room for improvement or when the regulator takes action. Key areas to focus on are the quality of risk assessments, the take up of health and safety training amongst staff, effective board level oversight and learning from past failings.

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