Regulatory round-up: Care and housing prosecutions

With that in mind, we have reviewed recent prosecutions from the Care Quality Commission (CQC) and the Health and Safety Executive (HSE) and identified the key messages for care and housing providers.

Care

Since January 2022, there has been a total of nine CQC prosecutions, suggesting that the trend of increasing criminal enforcement by the CQC is continuing.

Managing risk to residents and staff from other residents

There have been a number of prosecutions from both the CQC and the HSE which have focused on physical assaults of residents and staff by other residents.

Many organisations support people who sometimes act in unpredictable ways which can put themselves and others at risk of harm. It is therefore extremely important that providers assess and mitigate these risks properly.

Risks to residents

A Cheltenham care home provider was fined £460,000 for failing to protect its residents from avoidable harm following prosecution by the CQC. In March 2017, a person living at the home assaulted two of the agency care workers and later locked themselves in a room with another resident. Staff attempted to break down the door, as it was apparent that the other resident was being attacked, but were unable to do so.

On the evening that the incident happened, the home was short-staffed. The staff ratio should have been two agency staff with one permanent staff member to support, who would have known all the bedroom codes and where the bedroom keys were.

A Nottinghamshire care provider was also prosecuted by the CQC and fined £363,000 after a resident was sexually assaulted by another resident. There had been 79 separate incidents documented where this resident had displayed inappropriate verbal and physical sexualised behaviour and assaulted people. The CQC found that the provider had not managed the risk posed by this resident or escalated the concerns appropriately.

A third care provider was prosecuted in January and fined £66,000 after a female resident was attacked by another resident with known mental health issues and suffered a head injury. It was found that the provider did not have adequate systems and processes in place for assessing new admissions and did not carry out proper checks to mitigate the risk to that resident or others.

Risks to staff

While the focus of the CQC’s enforcement action is on failures in the provision of care, the HSE retain primary responsibility for enforcing the obligation to ensure the safety of staff.

The HSE brought a prosecution against a Liverpool care agency after an employee was stabbed by a resident during a regular visit. The employee had been left alone in the kitchen with the resident, despite the care plan stating that this resident always required the attendance of two care workers.

The HSE’s investigation found that the provider did not take account of the care plans and risk assessments that were in place, which clearly indicated the high risk that the individual posed to themselves and others. However, the risk assessment and care plan failed to identify the triggers for violence and aggression, and how the risk could be managed. The HSE also commented that the need for 2:1 supervision and triggers should have been highlighted more effectively to employees before visits.

A different care provider was prosecuted by the HSE after a female employee was abducted and sexually assaulted by a male service user. The HSE’s investigation found that the provider had failed to carry out a suitable and sufficient assessment of the risks to the safety of their female employees posed by this service user. Notably, there was evidence that indicated that concerns had been raised by support staff about their safety with this service user from as early as 1994. This incident happened in 2018.

Key messages

It is essential that providers not only carry out a full risk assessment addressing the risks to those being supported and to staff and put in place a care plan for each resident, but also ensure that the mitigations identified in the documents are put into practice. Concerns should be recorded and investigated promptly.

Where it is identified that a certain number of staff are needed for supervision purposes, this information should be provided to and shared with all relevant staff. Arrangements should be made to ensure that a sufficient number of staff are on shift at any one time, which may require careful planning given the sector’s staffing difficulties.

Providers should also ensure that staff have completed any training which may be needed to support individuals with behaviour that presents a risk to themselves and others.

When an incident does happen, it is important to seek legal advice as soon as possible. The regulatory team at Anthony Collins Solicitors are able to provide practical advice and support to providers when an incident has taken place.

Choking

Recently, a large care home company was fined following an incident where a resident choked to death on a jam doughnut. The resident was known to be at high risk of choking and was consequently on a minced and moist diet. The HSE found that the staff who gave out snacks had not received proper training and were not aware of the food that was suitable for each diet. Food was regularly given to the resident, which was not suitable for her diet, which was found to be in breach of the risk assessment.

We have also seen the CQC raise issues around staff training in enforcement action. The national staffing crisis has made it difficult for providers to recruit experienced staff and this can increase the risk of an incident occurring. Nevertheless, it is important that all staff receive sufficient training before starting work and that providers can demonstrate the steps they have taken to ensure that staff have read and understood training materials/care plans, risk assessments, etc.

Whilst the provider’s response on the day to the choking incident was not at issue in this case, providers should also ensure that they have clear policies on choking and that staff are aware of what to do should an incident occur.

Displaying CQC ratings

Since 2015, care providers regulated by the CQC have been required to display the rating awarded by the CQC following an inspection. Regulation 20A of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 requires providers to display their CQC rating on posters on the premises and on websites. This has to be done no later than 21 calendar days after the rating has been published on the CQC’s website.

Earlier this year, the CQC brought its first prosecution for a breach of regulation 20 and there seems to be a trend of increased enforcement action of this type, with three further regulation 20 enforcement actions (a mixture of formal prosecutions and fixed penalty notices) being brought since then.

For example, one provider was fined £500 for failing to properly display its rating. The provider had a link to the CQC’s website where the latest inspection report could be found, but this was not displayed conspicuously. In addition, on its home page, there was a statement, ‘click here to see our latest CQC report by CQC investigations.’ This link led to a report entitled ‘mock CQC report’ which displayed a different, more positive rating than that awarded by the CQC.

Whilst most providers will be familiar with the requirement to display ratings, it is important to remember that it applies even where a provider has requested a rating review following an inspection.

Since the introduction of the CQC’s new approach, many providers have experienced an unexpected rating downgrade (please see our podcasts for more information) and have challenged the CQC’s findings. Providers do not need to display new ratings from an inspection until the report is published, i.e. when the factual accuracy process has concluded.

However, at that stage, it becomes compulsory for providers to display the new ratings, even if they plan to challenge the inspection findings further. Importantly, where providers have asked for a rating review, they can put a note on the display of ratings to explain that they have asked for a review.

Other cases

• Priory Healthcare Ltd has pleaded guilty to an offence under the Health and Safety at Work Act 1974 following an investigation by the HSE. The investigation related to the death of Francesca Whyatt, who committed suicide at the Priory Hospital in Roehampton in 2013. The provider was previously criticised at an inquest that was held into the death in 2017, with the coroner observing that there had been very few experienced staff working on the day of Francesca’s death and that more should have been done to recruit permanent staff and avoid relying on agency staff. The coroner also found that the training and induction of staff was generic and not appropriately tailored to the requirements of the particular ward and criticised the provider for its response to the incident.
• A care home provider was cautioned after a resident and care worker fell four metres to the ground in a faulty lift. There had been ongoing issues with the lift which the director of the care home had been aware of but had not ensured that there was a system in place to deal with reports of defects. In addition, thorough examinations of the lift had not been carried out every six months, as required by law. This case is a reminder of the need to ensure the safety of any lifts on the premises, especially if the usual regular examinations have not been possible during the pandemic.
• Aster Healthcare was fined £1.04 million and ordered to pay prosecution costs of £184,513 after pleading guilty to corporate manslaughter. The circumstances of the prosecution were as follows: on 8 February 2015, Ms Frances Norris was put into a bath by a care worker and a junior care worker at the care home owned by Aster Healthcare. Whilst in the bath, Ms Norris said the water was cold and so the junior care worker was told to add more hot water. Ms Norris was left in the bath for several minutes before it was noticed the temperature of the water was too hot. Ms Norris was taken to hospital but sadly died three days later. The former maintenance worker for the home had raised issues about the boilers; he gave evidence that in response to his request that the boilers should be serviced, an unqualified gas engineer attended. That engineer’s work was later condemned by another engineer. The former maintenance worker said that he was treated as a troublemaker and later made redundant. Our comments and reflections on this prosecution can be found here.
• Another prosecution for a fall from height was brought after a number of fall-related prosecutions in the previous quarter. A care home was fined £21,000 after failing to protect residents from avoidable harm from falls. In this case, the resident was able to climb out of an unrestricted window and fell, sustaining life-changing injuries. Our last report is available to read here which provides advice on the steps that providers must take to mitigate the risk of falls.
• Finally, a prosecution was brought in relation to health and safety failings at a care home. During maintenance works, a door was removed and was left leaning against the wall in the hallway. A resident who suffered from dementia and was known to be at risk of falling was found on the floor with the door on top of her and subsequently died in hospital.

Housing

Whilst the Building Safety Act 2022 may be a key focus for housing providers (see Lorna Kenyon-Pain’s blog post on the subject), their broader safety obligations remain important. Falls from height and asbestos-related prosecutions continue to receive significant attention from the HSE. See our previous comments on these areas here. We have identified some further areas of focus which may provide some insight into the issues that providers should ensure are being addressed.

Vehicle and transport safety at work 

The HSE estimate that every year there are over 5000 incidents involving transport in the workplace – about 50 of these result in people being killed. Since June, there have been four HSE prosecutions brought in relation to incidents involving vehicles and transport management:

1. A lighting manufacturer was fined £53,360 after an employee was fatally injured when the forklift he was driving struck an overhead steel beam. The HSE’s investigation found that the traffic routes on site required forklifts to travel under a number of structural beams but there were no hazard markings to highlight these overhead obstructions.
2. A facility services company was fined £30,000 after a worker suffered a broken leg when he was struck by a forklift. The HSE’s investigation found that the company had not carried out an appropriate risk assessment to identify and implement risk control measures to ensure that vehicles and pedestrians were not working at the same time in the same place.
3. A fencing manufacturer and the owner of the yard where the business operates were fined £35,000 after a forklift tipped over and knocked over some stacked timber which fell onto an employee, fatally injuring him.
4. A skip hire and waste management company was fined £150,000 after a worker was seriously injured in a transport incident. The director was given a suspended sentence for failing to take reasonable steps to ensure adequate pedestrian segregation in the waste processing yard.

The HSE provide helpful guidance regarding managing the risks of vehicles and transport that can be found here. It is emphasised that in order to manage the risks, three key areas should be considered: safe site, safe vehicle, and safe driver.

The prosecutions particularly highlight the risks associated with lift trucks. The HSE estimates that lift trucks are involved in about a quarter of all workplace transport accidents. The risks associated with lift trucks should be well known to providers, but the prosecutions are a reminder of the importance of putting in place appropriate supervision and training for staff. The HSE has published an approved code of practice (ACOP) and guidance which provides practical advice on how organisations can comply with the law. ACOPs have a special legal status which means that if organisations follow the advice in the ACOP, they will likely be doing enough to comply with the law in respect of the matters on which the ACOP gives advice. The ACOP also provides detailed information on training: what it should include, where it should be carried out and who it should be carried out by.

Machinery safety

The Provision and Use of Work Equipment Regulations 1998 (PUWER) place duties on organisations and individuals who own, operate or have control over work equipment. Importantly, PUWER also places duties on organisations whose employees use work equipment, whether owned by the organisation or not.

There have been a number of cases in the past few months where workers have been injured by various types of machines (often leading to serious injury and sometimes amputation) or have been struck by falling plant machinery. Some examples include:

• An installer of fire suppression systems was fined £50,000 after an employee was crushed and trapped by a machine.
• A construction company was fined £34,000 when a worker was struck by a falling piece of plant machinery while working on a construction site.
• A kitchen company was fined £50,000 after a worker severely injured their finger in unguarded machinery.

PUWER requires that the equipment provided for use at work is accompanied by suitable health and safety measures (for example, guarding) and is used only by people who have received appropriate information and training. In these cases, the HSE identified that there had not been sufficient exchange of health and safety information in advance of, and during, the work activity and that dangerous parts of the machines were inadequately guarded.

When it comes to construction and carrying out repairs, housing providers should be aware of any responsibilities they may have in relation to machinery safety and ensure that they meet the necessary safety standards.

Other cases

• A landlord was fined for failing to ensure that gas fittings, appliances and associated flues were checked for safety. The HSE investigated following a complaint from a tenant. HSE inspectors attended the block of flats and found several gas safety faults and concerns which led them to issue ‘immediately dangerous’ safety notices and disconnect the gas supply to several properties. The case highlights the need for providers to ensure gas fittings and flues are maintained to be in a safe condition and are inspected every 12 months, in line with the Gas Safety (Installation and Use) Regulations 1998.
• In late 2021, the HSE launched its Working Minds campaign to promote good mental health and to prevent and manage work-related stress. The working minds campaign promotes the five R’s approach to tackling the risks of work-related stress. These are to: reach out; recognise; respond; reflect, and make it routine. The campaign provides employers with essential tools to spot the potential signs of mental ill-health and to identify what steps or improvements could be made within working practices to protect the wellbeing of staff members. The campaign is calling out for a cultural change across the UK. For further information about the campaign, please see our blog here.
• In January 2022, a construction firm and its director were sentenced after carrying out unsafe work on a roof of a multi-storey building in Manchester. The company was found guilty of breaching section 2(1) of the Health and Safety at Work etc. Act 1974 (HSWA). The company was fined £42,500 and ordered to pay costs of £5,049.73 plus a victim surcharge of £170. The director was found guilty of breaching section 37 of the HSWA 1974. The director was given a community order for 270 hours of unpaid work and ordered to pay costs of £5,049.73 and a victim surcharge of £85. We have written previously regarding the obligations in relation to work at height (see here). Whilst this prosecution should act as a reminder of the obligations in relation to working at height, it also highlights the need to ensure that, alongside training, on-site, ad-hoc and/or unexpected checks are conducted to ensure the training and guidance provided are being followed. The workers in question appear to have been spotted working unsafely by a third party, with a report being made to the HSE. 

For more information or advice about any of the issues in this ebriefing, please contact Freya Cassia or a member of the regulatory team.