- The CQC took over responsibility from the Health and Safety Executive (HSE) and local authorities for safety-related prosecutions in care homes in 2015.
- The CQC launched a new resource in 2018 to help health and care providers learn from safety incidents.
- CQC inspectors are responsible for identifying and investigating safety incidents relating to service users in the normal course of their work.
- CQC inspectors receive Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) notifications from the HSE, and the CQC follows these up. Where needed, specialist enforcement inspectors provide support in deciding whether to investigate and prosecute.
So it is important to understand which regulator will be interested in which type of safety breach; for example, providers will want to know which of CQC, HSE or the LA will deal with safety incidents concerning residents, care home staff or visitors. Where the safety of residents is concerned, CQC takes the lead. Table 1 explains how the roles are split between the three parties.
Most provides I deal with are aware that the Care Quality Commission (CQC) took on responsibility for safety-related prosecu-tions in care homes after entering into a memorandum of understanding in April 2015. This work was formerly the preserve of the Health and Safety Executive (HSE) and local authorities’ (LA) health and safety teams, who both retain a very limited role.
CQC follows HSE approach
CQC has now built up several years of experience in taking the lead on investigating and prosecuting safety incidents affecting care home residents in CQC-registered homes. It has secured a number of convictions against providers for failures to meet safe care and treatment aspects of the fundamental standards (Health and Social Care Act 2008 (HSCA 2008) (Regulated Activities) Regulations 2014).
Its prosecutions in the magistrates’ court have resulted in fines ranging from the tens of thousands to the low hundreds of thousands. The types of resident safety incidents that CQC has prosecuted have included:
- a resident suffering serious burns from a portable electrical heater
- a resident falling down a flight of stairs
- residents suffering injury from the use of or absence of bed rails
- a resident being exposed to risk due to poor medicines management and recording
- a resident suffering a fatal fall from a shower chair when posture belts had not been properly used.
The number of successful prosecutions is now in double digits.
All CQC inspectors are responsible for identifying and investigating resident safety incidents in the normal course of their work. When gathering and managing evidence to be used in safety incident prosecutions, inspectors must comply with the Criminal Procedure and Investigations Act 1996 and the Police and Criminal Evidence Act 1984, known as PACE.
‘RIDDOR’ reports and decisions to prosecute
CQC's inspectors now receive Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 reports (RIDDORs) and any that are forwarded to them by HSE or local authorities. The CQC follows these up and, where needed, the lead inspectors are supported by specialist enforcement inspectors in deciding on whether to investigate and prosecute.
Providers should anticipate a continued focus by inspectors on safety incidents and a steady flow of prosecutions. Decisions to prosecute must be in line with CQC’s own Enforcement Decision Tree (https://tinyurl.com/CQCenforcementtree) and their enforcement policy (https://tinyurl.com/CRCenforcementpolicy).
Learning from safety incidents
For many years, the HSE has provided organisations across all sectors with information to assist them in deciding how best to meet their health and safety obligations. Such information has ranged from reporting on past prosecutions and convictions to issuing notices on specific health and safety issues to raise awareness, for example on the use of window restrictors in care homes. Although it is ultimately up to each organisation to decide how it will meet the requirements, HSE’s approach has certainly helped many organisations and care home providers to understand their obligations and changing technical standards that apply. This has supported compliance and helped providers to manage and reduce risks.
Sensibly, CQC has adopted this approach in relation to its safety investigation and prosecution roles.
CQC launched a new resource last year to help health and care providers learn from safety incidents. At that time, the then Chief Inspector of Adult Social Care, Andrea Sutcliffe CBE commented on the launch, saying: ‘When something goes terribly wrong in health and social care, the people affected, their families and carers often tell us, “I don't want this to happen to anyone else”.’
Four key themes
Having analysed nine of its safety incident prosecutions, CQC’s online resource identifies four key themes for providers to focus on with a view to preventing similar serious incidents.
- Problems with the quality and use of risk assessments – safety incidents caused by not having a proper system in place for assessing the risks to the health and safety of residents.
- Issues with documentation – residents put at risk due to wide-ranging documentation and management failures in relation to medicines.
- Issues with equipment – failures to provide suitable equipment to mitigate safety risks.
- Staff training – failures to train staff on safety procedures and related safety issues and alerts.
Safety issues covered to date
The types of safety incident currently included in the resource will be familiar to registered managers and to care home owners and leaders. Each topic covered describes a critical safety issue, what CQC and the relevant provider have done to address it, and the steps that providers generally can take to avoid it happening in their service. The safety issues covered are:
- falls from improper use of equipment
- unsafe use of bed rails
- fire risk from the use of emollient creams
- burns from hot water or surfaces
- safe management of medicines
- caring for people at risk of choking
- falls from windows.
CQC’s resource pages are well written and raise a number of current important safety issues for providers and give pointers on steps that providers should consider taking. They also point providers to further useful information, but they should be seen as an introduction only to some of the many safety issues in care homes.
For providers who are preparing for CQC inspections, the issues covered in the resource give advance notice of what inspectors will be paying particular attention to. Providers should ensure that their risk assessments in these areas are up-to-date and that they have taken suitable steps to mitigate identified risks, including appropriate staff training.
For those responsible for safety in care homes, the ‘go to’ resource remains HSE’s Health and safety in care homes publication, which providers can download from HSE’s website.
- Learning from safety issues, CQC, June 2018:https://tinyurl.com/CQCsafetyincidents
- Health and safety in care homes, HSE, 2014: www.hse.gov.uk/pubns/books/hsg220.htm
Use the following items in the Toolkit to put the ideas in the article into practice:
- Checklist – Bed rails safety (care homes, nursing homes, hospitals, hospices)
- Policy – Windows safety (care homes and nursing homes)
- Form – Windows safety inspection and maintenance record (all providers)
- Policy – Hot water and hot surfaces (care homes and nursing homes)
- Form – Hot surfaces inspection and maintenance record (all providers)
About the author
Errol Archer is a health and social care law expert with nationwide law firm Scott Moncrieff & Associates, specialising in regulatory, compliance and advocacy for care homes and other health and care providers. He deals regularly with the CQC, Ofsted and the HSE, and has won appeals at tribunal against CQC and Ofsted’s notices of decision. As a solicitor-advocate, he also represents clients in tribunals and the coroners’ courts.