Trusts will be allowed to register with the Care Quality Commission even if poor hygiene is putting patients at 'significant risk'.
Guidance issued by the new health and social care regulator confirms that it will refrain from using new powers to close trusts that fail to comply with legal duties on infection control.
Trusts with "significant weaknesses" in relation to the hygiene code will still be able to register with the new regulator next April.
Where there are ongoing breaches demonstrating that "a trust's general management systems are failing to protect people", conditions may be attached to registration. These may involve specific plans, such as improving isolation facilities.
Care Quality Commission chief executive Cynthia Bower told HSJ she expected other parts of the NHS, such as strategic health authorities and primary care trusts, to deal with badly performing providers before major problems arose.
"There are many other checks and balances in the system to spot problems before the regulator comes in," she said.
"I can't imagine circumstances where we would cancel registration because of healthcare-associated infections."
The regulator will only refuse to put a trust on the register if there is evidence of a serious risk to the life, health or well-being of patients, or if trusts submit incomplete application forms. Unregistered trusts will not be permitted to provide services.
Last week's annual health check results showed a quarter of trusts were failing in hygiene standards.
Firm, but fair
The new regulator is launching a consultation tomorrow on its enforcement policy. The consultation paper says it will take a "firm but fair" approach to regulation, putting emphasis on equality, diversity and human rights.
It sets out scenarios that would trigger particular enforcement actions, which are much tougher than those held by the Healthcare Commission.
More detailed guidance on financial penalty notices is being drawn up by the Department of Health.
Ms Bower said she wanted to hear NHS managers' opinions but feared they were not fully aware of the registration deadlines.
Health and social care organisations must register by April 2010, a year after registration in relation to the hygiene code comes into force.
"I think they understand there's a new regulator but the licensing aspect of regulation is something of a mindset leap for the NHS," Ms Bower said.
HOW ENFORCEMENT POWERS MAY BE USED
Warning notice For example, for poor procedures regarding patients who are absent without leave
Conditions Eg, to close a hospital decontamination facility that is not fit for purpose
Fine Eg, for failure to comply with Mental Health Act
Suspended registration Eg, due to large-scale outbreak of an infectious disease in a hospital
Cancelled registration Eg, for sudden and suspicious death of one or more care home residents
Prosecution Eg, using principles in the Code for Crown Prosecutors
Caution Eg, when a person who is operating a service is found to be not complying with guidance