Emollient Creams – Riskier than you might think?
A large care provider was required to pay a staggering £1,041,500 earlier this month, comprising a fine of £937,500 and prosecution costs of £104,000, after pleading guilty to an offence under the Regulatory Reform (Fire Safety) Order 2005.
A service user, who was a smoker and used a wheelchair, tragically died in one of the provider’s services following a fire after smoking outside in a shelter unsupervised. The service user used emollient creams and as a result of the fire risk that created, was required to be supervised and to wear a flame proof apron when smoking.
The prosecution in this case was brought by the London Fire Brigade, although similar prosecutions can also be brought by the Health and Safety Executive, and/or the Care Quality Commission (“CQC”) under various powers conferred on them, subject to certain agreements between the various relevant regulatory authorities. It was the largest ever fine for a breach of the 2005 Order, even after discounts which were applied for a guilty plea, and to reflect pressures on the care sector brought about by Covid-19.
In the context of CQC regulated services there have been a number of high profile convictions for safety failings in recent times, including some large fines for fire safety breaches. At the lower end of the scale, we are also seeing an increasing number of draft inspection reports, notices of proposal and enforcement measures where providers are being picked up on fire safety concerns which have not necessarily been an issue in the past, and are being heavily criticised if there is any indication that fire safety risk is not being properly assessed and/or managed. We are seeing emollient creams feature more regularly, which indicates that CQC staff have been instructed to pay particular attention to their use, and are likely to continue to do so for the foreseeable future.
One of the important facts in the recent prosecution appears to be that the provider had assessed the risk to the service user linked to the use of emollient creams, but had then failed to put in place the measures deemed necessary to manage that risk. We are, however, also seeing more allegations of providers failing to properly acknowledge, or assess the risk in the first place. If nothing else, this – as well as the recent prosecution – should be a stark reminder that it is critical that service providers ensure both that fire risk is properly assessed, and any risks are properly managed to mitigate the risks as far as possible, and that there is clear documentary evidence of both being done.
Emollient creams can take a number of forms but are often used as topical skin application creams to relieve conditions such as dry skin. Many of the commonly used ones are paraffin-based, and many are highly flammable. This is normally explicit on the packaging and such creams will need to be both stored, and used, with fire risk in mind. The level of risk assessment and steps required to mitigate risk may vary by provider, and by the needs of each service user. For example, a care home provider will have more control over environmental risks than a domiciliary care provider who only sends carers into individuals’ homes from time to time. A care home may be be wholly responsible for the storage and application of emollient creams at all times, whereas service users in their own homes may need to be advised on how they can store and apply them for themselves. Emollient cream risk and wider fire risk should therefore be considered at a service level and at individual service user level in each case. Providers should be especially careful to ensure risks are addressed and can be mitigated before accepting admissions or referrals of service users who need or may need emollient creams and who smoke, or who like to do activities which may involve naked flames, such as cooking.
In the event of an injury or death relating to fire, providers may well have to produce significant amounts of evidence in order to defend themselves from prosecution and if they cannot do so successfully, the penalties involved can be serious. Fire risk assessments, and any other relevant care records will need to appropriately reflect the fire risk which is associated with emollient creams, in addition to any other fire risks of course. Staff will need to be suitably trained and informed, and will need to support service users and help them also mitigate any risks as far as possible.
Whatever risk assessments/steps are in place/taken to mitigate risk should be reflected properly in governance records, as well as in records relating to individual service users. This is of course not limited to emollient creams, or even just to fire risk. Providers have a myriad of requirements imposed on them and fire safety should not be considered in isolation from wider risk, and health and safety requirements. However, given the increased scrutiny of fire safety matters by the CQC and other authorities, and in light of the significant penalties which can follow for breaches of the relevant requirements, providers would be well advised to assess fire safety matters thoroughly, and preferably quickly.
Providers should, for example, ensure that the risk of the use of emollient creams is understood, and well assessed in the case of each service user, that any risks rising are mitigated as far as reasonably possible, and that risks and steps to mitigate risk are well understood by all relevant parties. They should also have clear records of what steps have been taken by them and their staff so they can demonstrate those in case they do have to defend themselves in a prosecution (or otherwise).
Providers may in particular wish to ensure, amongst other things that:
- Service-wide risk assessments are up to date and are scheduled to be reviewed/updated at appropriate intervals, and any recommendations arising from them have been addressed;
- Service users’ own risk assessments (and/or PEEPs where relevant) are up to date, and properly consider and take account of the use of emollient creams;
- Care plans and directions to staff (and training) are clear in what is required to help mitigate risk when using or storing emollient creams in respect of any individual service user, and more generally;
- There is good communication with other healthcare providers to help ensure that the relevant areas of responsibility for risks are clear and to help other professionals or individuals involved in care (such as social workers, family members or other care givers) ensure that there can be coordination, as suitable, to minimise risk;
- Care records properly reflect measures taken by staff which are relevant to mitigating fire risk (including how service users are supported to mitigate risk to themselves), and are audited regularly to ensure that this practice continues; and
- Staff fire safety training and fire risk awareness training is up to date and includes the risks associated with emollient creams, and competency is monitored and assessed on a regular basis.
Where providers have already been found (or alleged) to be failing on fire safety matters and either admit guilt or cannot defend their position, they can expect the regulators to push for very heavy penalties. If providers do find themselves in this position, however, there are still steps which can, with the right strategy, be taken to reduce the level of fines awarded. Quality legal advice sought at an early stage can make a significant difference to outcome in these cases.
If providers are concerned about fire safety risk management, or are facing enforcement or prosecution as a result of alleged breaches of fire safety or other risk management requirements, Ridouts can assist. Please contact our offices on 0207 317 0540 or request a call back via our website.
