Regulatory round-up: care and housing prosecutions update 2023

These trends often reflect the issues that we see our clients facing and help to provide an indication of regulators’ priorities. Being aware of those areas of focus can therefore help housing and care providers to direct their attention to issues that are of particular concern for their regulators before inspections and potential enforcement action can take place.

Care

The number of prosecutions brought by the CQC has been steadily rising for some time. In addition, it is now clear that the size of the fine when a successful prosecution is brought has also increased. To illustrate the point, the average fine has increased from £160,000 pre-pandemic to £540,000 post-pandemic, with many fines exceeding this amount.  

Prosecutions of a registered manager

Normally, we see the CQC prosecuting providers as the body carrying on regulated activities rather than individuals who work for providers, but the CQC can also use its enforcement powers to hold certain individuals to account, e.g. directors or registered managers. Over the last six months, there have been three instances where the CQC prosecuted individuals either instead of or in addition to the provider itself.

The first case related to the prosecution of a registered manager for two offences of failing to provide safe care and treatment, one in relation to a choking incident and the other in relation to a fall (also indicating that choking and falls are areas the CQC will continue to focus on – see our last update for more information). In this case, it was found that the registered manager had not safely assessed the choking and falls risks respectively in relation to two separate residents.

1. One resident had been involved in four separate choking incidents, with the final incident resulting in her death, but no referral had been made to a speech and language therapist at any stage. The registered manager had also failed to respond to information requests from a dietician which meant that the referral was closed.

2. The second resident suffered at least 14 falls since his admission to the home. Following a further fall, he was taken to hospital and was diagnosed as having a fractured left neck of femur which contributed to his death a few days later. It was found that the registered manager had not ensured that the care records were kept up to date and had failed to promptly refer him for specialist advice and support.

The registered manager was personally fined just over £55,000. While that is of course a very significant amount for an individual, the fines for organisations can be even higher.  

The second case related to a failure to adequately address the risks posed by an individual supported by the service. The registered manager had been informed by a social worker that a resident at the home was on the sex offenders register and had committed a sexual offence. The resident remained at the home, despite the organisations admissions policy stating that people with a history of criminal sexual offences should not be admitted to their homes. There was a failure to adequately assess and mitigate the risks and the resident sadly went on to sexually assault another resident.

The care provider was fined £128,000 and the registered manager was fined £1,000.

In the most recent case, a resident suffered from pressure sores and had biweekly visits from district nurses. After the nurses discharged the resident, their pressure sores returned and there were a further 44 entries of pressure sores. Rather than seeking treatment from the district nursing team, the registered manager instead decided to treat them herself.

Two months later, the resident was found unresponsive and taken to hospital, an inspection revealed multiple areas of damage from pressure sores. She later died in hospital from multi-organ failure caused by septicaemia, pressure sores and generalised atherosclerosis.

The provider was fined £120,000 and the registered manager was fined £2,000, with the court accepting they had failed to ensure the resident received proper treatment for pressure ulcers and failed to ensure she received adequate preventative pressure care.

While it is generally rare to see enforcement action of this type taken against individuals, these prosecutions might be an indication of the direction the CQC may take in the future, so it is important to be aware that action may not always be solely targeted at the organisation. In addition to bringing a criminal prosecution against an individual, the CQC can also take other enforcement action such as cancelling the registration of a registered manager, refusing a new registration where they consider an individual is not a fit and proper person, or, for an existing provider, request that the provider gives assurance that directors are fit for their role, and so on.

Fire safety

We recently wrote a blog about a care home run by BUPA being fined a record-breaking £1.04 million by the London Fire Brigade for breaches of the Regulatory Reform (Fire Safety) Order 2005 following a fire at their Manley Court care home in March 2016. The resident was a wheelchair user and died in a fire whilst smoking unsupervised in a shelter in the garden of the home. An investigation found that although the home had carried out a smoking risk assessment, it did not consider the use of emollient creams, which can be flammable if allowed to build up on clothing or skin. The investigation found burn marks on the resident’s clothes, indicating that there had been previous incidents of which care staff stated they were not aware.

Care providers should be aware of the fire risks associated with the use of emollient skin creams and ensure the risks associated with these products are fully assessed, particularly if the resident smokes. More generally, we have seen a huge increase in the CQC’s focus on fire safety since the CQC signed a memorandum of understanding with the fire service. This has included both enforcement action and criticism in inspection reports, so care providers should ensure that addressing fire risks is a priority. Further guidance on this topic can be found here.

Risk assessments

The magistrates’ court recently fined The Red House Welfare and Housing Society £14,000 for failure to manage known risks affecting the care received by a woman at its home in Sudbury. We recently discussed the importance of risk assessments and how this is only the starting point in ensuring the safety of service users (see our post here).

The resident was a wheelchair user, and on multiple occasions whilst under the home’s care, her foot had fallen from the wheelchair footplate as she was being pushed, becoming caught underneath and at times stuck. Healthcare professionals had noted that the recurrence presented as a continued risk, but the provider did not take adequate steps to safely manage these risks. One occasion caused a fracture to the woman’s thigh bone and damage to her knee joint. This led to the resident spending 16 weeks with her leg in a cast and remaining in hospital for a long time before being discharged to a different service.

Robust risk assessments are key to identifying issues for residents and preventing avoidable incidents from occurring. This case highlights the need to ensure risk assessments are not simply a box-ticking compliance exercise and need to be carefully tailored to the individual person being supported to mitigate the risks identified.

Lessons learned from HSE prosecutions for care and housing providers

The HSE remain vigilant surrounding issues of machinery, falls from height and asbestos-related prosecutions, with the HSE promoting its new Asbestos and You campaign to remind those working in construction trades of the risks associated with asbestos (see our blog here). Whilst these are all issues which will be relevant to housing providers (and many care providers who control a property), of key significance to both care and housing providers is a series of recent prosecutions which have shown the potential breadth of an organisation’s obligations to those affected by its operations.

We have seen two recent prosecutions in respect of the risks relating to trees.

• Newcastle City Council were fined £280,000 after a six-year-old girl was hit by a decaying willow tree whilst at her playschool. The pupil was freed from under the tree and taken to hospital where she died the following morning. Several other children were hit by the tree but managed to escape, some with superficial injuries. HSE found that the council failed to identify the extent of the decay or to manage the risk posed by the tree.
• HSE prosecuted Oak Lodge Care Home for a similar incident. An eight-year-old girl and her father were out for a jog and as they approached the public pavement outside the entrance of the care home, a lime tree fell onto the child leading to serious injuries and the subsequent amputation of her leg. BUPA was fined £400,000 after HSE investigations found that the incident was entirely avoidable. HSE found that the tree was diseased with a common fungus and had been rotting for years prior to the incident however BUPA failed to put management strategies in place for this (see our blog here).

While organisations with responsibilities for trees should ensure the risks associated with those trees have been managed and assessed appropriately to avoid incidents such as those above, these cases also remind care and housing providers that their duties under the Health and Safety at Work Act 1974 (HSWA) go further than ensuring the safety of staff, and that all those who may be affected by their operations are owed this duty, including members of the public.

This can further be seen in a recent case from Scotland. A Scottish civil engineering contractor was fined £800,000 for safety breaches after a ten-year-old boy died from falling down a manhole on a building site in Glasgow. An investigation by Police Scotland and HSE found that insufficient measures had been taken to prevent children from gaining access to the construction site. HSE specifically found that the company failed to carry out a suitable and sufficient assessment of the risk of unauthorised persons (including children) gaining access to the site, which resulted in a failure to adequately inspect and maintain suitable perimeter fencing and install other suitable security measures (see our blog here).

Linked to this, we have also noted a trend in cases around appropriate signage, barriers and security measures. In one case, a plumbing company was fined £4,000 after a blind resident of a sheltered housing scheme fell into an open manhole, suffering injuries to his leg. The manhole development had been left open by the plumbing business while a blockage was being cleared. An investigation by HSE found that the plumbing company failed to make a suitable and sufficient assessment of the risk posed by the open manhole. The company had failed to put in place barriers, signage or other protective measures to prevent anyone from accessing the pathway leading to the open manhole. Further, no signage, barriers, guarding or other protective measures were put in place to prevent pedestrians from falling into the manhole itself.

Housing and care providers must remember that their duty under section 3(1) of the HSWA is to ensure so far as is reasonably practicable the health and safety of those who may be affected by their operations. In many cases, this is far broader than just the people to whom they directly provide services, and may cover, for example, members of the public walking by the site, individuals dropping off deliveries and even trespassers. Providers must ensure they have assessed the less obvious, wider risks associated with their operations, sites etc, and that they have implemented suitable risk mitigation measures.

Compliance with enforcement action

Finally, there have been several cases where HSE have prosecuted organisations where there has been a lack of action in response to enforcement action.

In one case, HSE served a company with three prohibition notices and five improvement notices in relation to a number of health and safety failings at a building site. Despite previous HSE interventions, the company did not implement the necessary health and safety measures, resulting in a prosecution and fine. In a separate case, a construction company was fined after failing to make sufficient improvements after an improvement notice had been issued. In another case, a car valeting company was also fined after failing to comply with an improvement notice.

These cases highlight the need for providers to tackle issues early and effectively. Where the regulator has become involved, acting proactively will help to demonstrate to the regulator that concerns are being taken seriously and may help to persuade them not to take further action. It is also important to maintain a balance between working constructively with regulators and challenging them where appropriate, especially if the action they are taking is clearly unfair or disproportionate.

For more information on the care and housing prosecutions update, please contact Freya Cassia, Elizabeth Massey or a member of the regulatory team.

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