Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The CQC’s prosecution earlier this month of an Essex Care home (Rushcliffe Care Limited) comes as a salient reminder of the need for providers to act promptly when they are aware that a service user’s condition has deteriorated to ensure that their risk assessments and care plans are up to date.
This case has echoes of the St Anne’s Community Service prosecution (which was the CQC’s first prosecution after taking over in such cases from the Health and Safety Executive in June 2016). In both cases, the incidents giving rise to the prosecutions happened whilst service users were with care workers who were supporting them with personal care (showering). In both cases, the service user’s posture had deteriorated in the preceding weeks.
However, unlike St Anne’s, the Essex care home had not made a timely referral for a reassessment of the service user’s needs. Sadly, in the St Anne’s case, the service user died and in this case, the service user suffered a life-changing serious injury.
In the Rushcliffe Care matter, a healthcare worker at the service had raised concerns about the deterioration of the service user’s condition; these concerns were apparently not acted upon. Risk assessments were insufficient, and there had been a failure to refer her promptly for specialist assessment, this was despite the deterioration in her posture and risks identified by staff while showering. Additionally, the equipment used to support her was unsafe as it was the wrong size and provided insufficient posture support.
Before June 2015, the provider had no policy or suitable guidance for using commode shower chairs safely and staff who showered the resident did not have adequate instruction on how to keep her safe. No lap belt was in place, and there were no foot plates on the chair being used.
Rushcliffe Care Limited was prosecuted for a breach of Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This sets outs a provider and registered manager’s duty to ensure safe provision of care of treatment.
A fine of £120,000 was imposed plus costs of £17,826.37, and a victim surcharge was awarded of £170.
The key practical points for providers to review include:
- Ensuring that staff are trained to recognise changes in a service user’s needs and that they know who to escalate matters too. Do you have a clear policy in place that all staff must read which gives clarity about who to report to and whose responsibility it is to take action? Chase up referrals to primary healthcare services and ensure you can evidence this.
- Checking equipment is suitable for the purpose you are using it for. In the Rushmore case, the lap belt and footrests were not used. They have now determined not to use the particular piece of equipment in the service again.
- Ensure that you receive and disseminate alerts from the Medicines and Healthcare Products Regulatory Agency (MHPR alerts) and can evidence that they have been read. See MDA/2015/018.
The MHRA states that it continues to receive reports of injuries and fatalities because posture/safety belts on assistive technology devices aren’t used, fitted or adjusted properly or they haven’t been maintained correctly. It refers to the fact that:
- Problems include the person in the seat slipping down and suffering positional asphyxiation or strangulation, or falling out of the seat and incurring an injury.
- For some people, a belt alone cannot keep them in an appropriate sitting position and they may need other supports to stop them slipping down (e.g. tilt-in-space or supportive seating).
These alerts will always form part of the evidence used in a prosecution.
For further information
To discuss an incident in your services or for help in developing your approach to risk management, please contact Sarah Knight or call 0121 214 3733.
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