It is becoming clear that the senior management of the CQC has developed a change of policy for providers which is to stigmatise and punish rather than to support and encourage. It was not always so, but, providers must be prepared to manage their relationship with their regulator on the basis of how it is, rather than, how they would like it to be led.
The CQC, sensibly, will only prosecute if they are very sure that they will be successful. The CQC are encouraged in this by two important factors:
- The threshold for service failure to merit conviction is low, and
- Early pleas of guilty attract an established discount of one third from the courts judgement on the level of culpability.
These cases (unlike HSE prosecutions) are heard in the lower level courts (Magistrates) but the level of fine is unlimited. Fines are to hurt not destroy. Larger organisations will receive higher fines than the smaller SME providers. The CQC will try to persuade the district judge to apply health and safety (“H&S”) guidelines – this is not correct and should be resisted. The H&S guidelines are formulaic and leave less room for discretion. Those unfortunate enough to face the dilemma should argue for magisterial discretion. It is unlikely to be higher than H&S guidelines.
However large the provider fines will, rightly, be significant. Often they reach well into six or even seven figures. It is not for the sector to bemoan this charge, or, muse on the futility of policy which takes cash out of a cash tight business area. It is important to accept the reality and manage it sensibly and in advance.
The ability to defend will be set in policies of proactive risk management and staff training (repeated and reinforced) and, good contemporary record keeping.
Safe care and treatment
Providers may be convicted and fined if they are proven to have failed to provide “safe care and treatment” and that failure results in “avoidable harm” or a “significant risk” of such harm occurring. That is a very low bar. Of course accidents will happen. However providers are entrusted to take all reasonable steps to avoid the occurrence. It is unlikely that providers will be advised to challenge a prosecution unless the required records and policies and dynamic risk assessments are in place.
A substantial fine will impact on cash flow. Such a fine is probably not tax allowable. Fines (as a consequence of wrongdoing) are not insurable. One cannot contract out risks associated with criminality (one can insure legal costs but not any fine). Fines are a straight hit to distributable profit, much more important, the prosecution and the fine will be aggressively published with long term damage to business reputation which takes years to repair. Reputations are made over years but lost in a second.
Let us put this into some context. At Ridouts we have seen a real surge in cases involving the death or near death of service users following choking on food. Not all choking is –
- Foreseeable or
- Minimised by action after the trauma has commenced.
A choking incident happens quickly and the consequence often transpires within a frighteningly short period of time. Staff engaged may not well be the most senior or experienced and there will be little time to react or seek support. The picture painted in evidence will be alarming and witnesses, staff engaged, and, the relative’s family will inevitably be traumatised. We can all choke. We do not all have a predisposition to choke. Most of us will recover. Choking may be caused by –
- Neglectful feeding
- A blockage
- A congenital condition, the most dangerous is a tendency to aspirate (this is a human swallowing malfunction which leaves a risk that food will be clearly indigested into the lungs as opposed to the stomach).
Understandably, dynamics assessments, incident reporting and learning lessons will all be important in establishing the material to found a successful defence. The CQC must prove that the system was unsafe not simply that an adverse consequence occurred as a result of human error. If the systems are in place, and most important seen to be implemented it as less likely the CQC will prosecute. In our experience the following areas will positively influence the decision to prosecute:
- Good and detailed admission assessments. Ask the questions! Do not be rushed into accepting a placement. If in doubt seek a SALT (speech and language therapy) assessment.
- Carefully record assessments, risks, and mitigation factors.
- If you feel the risk is unmanageable do not accept the placement.
- Ensure all incidents of choking, no matter how apparently inconsequential are recorded reviewed and lessons and actions implemented.
- Review risk assessments regularly and dynamically.
- Establish proper training
- Chefs on food preparation
- Table staff on support with feeding
- Care staff on how to react. Staff need to know instinctively what to do and what, if any, equipment to use and how and where to find it and how to use it. Like in a different context, fire extinguishers, untrained staff should not attempt to use equipment for which they are not trained.
- Keep meticulous records and keep detailed risk assessments. There will be incidents and accidents but those steps will help to construct a viable defence if one is available.
- Investigate all incidents, whether or not with serious adverse consequence. The investigation should be independent and thorough. In many cases it would be wise to instruct through lawyers so as to give the best chance of protecting an adverse report from disclosure. Form a view early as to what actually happened. Keep an open mind and do not be influenced by subjective overreaction.
- Take any external investigations particularly inquests, most seriously. A well-managed inquest may defeat the risk of prosecution. Dismissing inquests as inconsequential is a fatal error. Where possible make the coroner your friend. Remember it is an offence to withhold information relevant to a Coroner.
Inquests are about much more than financial exposure of liability insurers. The interests of insurers are not coincidental with the insured provider. Reputation and wider consequences than insured legal liability are at stake. CQC are using these types of incidents to bolster a positive media impression for them as an effective regulatory. Make sure you are fully prepared long before crisis strikes.
If providers would like help with, or advice on, how to deal with the CQC or a Coroner’s court following a choking incident in their service, please contact our specialist team of solicitors on 0207 317 0340 or ask for a call back via our website.