Healthcare providers face increased risk of prosecution for health and safety offences, says expert

On 1 April 2015, new regulations came into force which removed the need for the Care Quality Commission (CQC) to issue a warning notice before initiating prosecution in many cases. This is a significant development in health and social care governance, and means that the risk of a criminal prosecution has increased.

Health and social care providers need to understand what these changes mean for their facilities. They will also have to put in place measures to ensure that their senior staff understand what is now expected of them.

'Fundamental standards' and health and safety enforcement

Under the previous regime, health and safety enforcement at health and social care facilities in England was the responsibility of the Health and Safety Executive (HSE) and local authorities. These bodies will continue to deal with health and safety cases involving employees, visitors, contractors and people not registered with the CQC. However, where there are alleged issues affecting the health, safety or welfare of service users in a CQC-regulated service, these will in most cases be treated as a suspected breach of the fundamental standard of 'safe care and treatment' and will be investigated by the CQC, not the HSE.

It may not always be immediately clear which body will take the lead in an investigation. In those circumstances, providers should seek clarification at an early stage. The CQC, HSE and local authorities have prepared a memorandum of understanding (MOU) to reflect the CQC's new enforcement powers. Examples of cases which the CQC would prosecute under this new agreement include the likes of a patient or service user falling from a window, the severe scalding of a patient in a bath or shower, or a patient being given inappropriate food resulting in them being seriously harmed or dying from choking.

There is no doubt that the MOU will result in an increased number of investigations by the CQC for health and safety breaches which, in the past, may have escaped scrutiny by the regulators. It is essential that providers ensure that they have robust health and safety compliance systems in place to avoid the risk of prosecution. Incident protocols should also be updated to reflect the possibility of multi-agency investigations.

CQC enforcement policy

In addition to the MOU, the CQC has also issued important new guidance for providers setting out how they should meet the requirements of the new regulations. The guidance also sets out the principles and approach that the CQC will follow when using its new enforcement powers.

Providers should be aware that the new regulations explicitly state that providers "must have regard" to the operational guidance issued by the CQC. This means that, if issues do arise, the CQC will examine the extent to which a provider has complied with the guidance. If the guidance has not been followed, providers will need to stand ready to justify why they have taken an alternative approach.

The enforcement policy sets out a structured decision process to help the CQC decide:

• which cases should result in enforcement action;
• which enforcement powers should be used; and
• which approach the CQC should take when using its powers.

The CQC has also published a helpful 'decision tree' (16-page / 128KB PDF) describing the different stages that it will follow when considering enforcement.

Health and social care providers should ensure that they familiarise themselves with both the new enforcement policy and the decision tree to ensure that they understand what is expected of them. It may also be possible to refer the CQC to its own enforcement policy if a provider wishes to challenge a particular CQC decision to take formal enforcement action.

Sean Elson is a health and safety law expert at Pinsent Masons, the law firm behind Out-Law.com.