New regulation proposal could make the CQC responsible for taking action against health and safety incidents involving patients, explains Joanna Dirmikis
In response to the Francis Report of the Public Inquiry into Mid Staffordshire Foundation Trust, the Care Quality Commission, the Health and Safety Executive (HSE) and representatives of local authorities have drawn up a proposed liaison agreement, designed to ensure that there is co-ordinated and comprehensive regulation of health and safety for patients, service users, workers and other members of the public.
The consultation is now open. It closes on 31 December. Register and comment on the agreement before the consultation closes.
Terms of agreement
The proposal which is set out in the liaison agreement, is that from April 2015, the CQC will become responsible for taking regulatory action following health and safety incidents involving service users who use health and adult social care services which are regulated by the CQC.
The responsibility will be transferred from the HSE, which together with local authorities currently deals with these health and safety prosecutions.
This means that in cases where patients and service users have been seriously harmed or die due to unsafe care, the responsibility will now fall on the CQC to take action under the fundamental standards.
‘The CQC will become responsible for taking regulatory action following health and safety incidents involving service users’
Both the HSE and the local authorities will continue to deal with health and safety prosecutions in cases involving employees, visitors, contractors and people not registered with the CQC.
Examples of cases which the CQC would prosecute under this new agreement include service users falling from a window, service users getting severely scalded, patient deaths arising from infections on a hospital ward, service users choking and dying after being given inappropriate food and severe injuries following inappropriate restraints by staff.
‘Health and safety executives will still be able to prosecute when the responsibility falls on commissioners’
Examples of cases which the HSE and local authorities would prosecute include cases where the commissioner, rather than the provider, seems to have been at fault, providers not registered with the CQC who are not required to be registered with them, employees suffering manual handling injuries and a contractor’s tower scaffold collapsing in a care home or the car park of a care home.
Where there is any uncertainty about jurisdiction, the relevant bodies will “determine who will have primacy for any regulatory action and whether joint or parallel regulatory action will be conducted.” They will also keep a record of their decision, designate appropriate contacts within each organisation and keep stakeholders informed accordingly.
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According to the CQC’s proposal for prosecution criteria in their consultation titled ‘Guidance for providers on meeting the fundamental standards and on the CQC’s enforcement powers’ (published in July 2014 and which closed on 17 October 2014), there are a number of factors which the CQC will consider when deciding whether to prosecute.
According to that document, one of the following ought to apply in a case where a prosecution follows:
- The gravity of the incident and the actual or potential harm (or the general record and approach of the provider) warrant prosecution;
- There has been reckless disregard of the requirements on a registered person;
- There have been repeated or multiple breaches, which give rise to significant risk, or persistent and significant poor compliance;
- The service is carried on significantly below the standards that are required for compliance with regulations and is giving rise to significant risk;
- Failure to register with the CQC when this is required/attempting to do so;
- Failure to comply with a requirement, warning notice or condition, suspension or cancellation of registration; or there has been a repetition of a breach that was the subject to a simple caution;
- False information has been wilfully supplied to the CQC or information or explanations have been withheld, or there has been an intent to deceive, in a case which gives rise to serious risk;
- The intentional obstruction of persons authorised by the CQC (for example, inspectors).
If the agreement takes effect, we can expect a large increase in CQC-led health and safety prosecutions under the Fundamental Standards.
It will be interesting to see how this development, together with the changes coming in next year, affect the total number of CQC led prosecutions.
‘There will likely be an increase in the number of prosecutions agains providers’
From April 2015, the new Fundamental Standards will come into force. One of the key changes which the Fundamental Standards bring in is that there is no longer a requirement for CQC to serve a warning notice prior to prosecution for breach of a regulation.
Up until now, CQC have been slow to prosecute, perhaps in part because they might struggle to prove cases to the necessary criminal standard (‘beyond reasonable doubt’) but also perhaps because their powers to do so are currently more limited than they will be in the future. The Fundamental Standards will change this.
‘The CQC are no longer required to serve a warning notice prior to prosecution’
In our view at Ridouts, the introduction of the new Fundamental Standards, coupled with this new liaison agreement, increases the likelihood that there will be a rise in the number of prosecutions against providers. This does not seem like something which the CQC are currently equipped to deal with.
Joanna Dimirkis is a barrister for Ridouts LLP