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Care Sector – regulatory update

Stay informed on health and social care sector regulations, enforcement actions, investigations, and preventive measures. Learn about case studies, sentencing guidelines, and practical tips for handling investigations effectively.

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Care Sector – regulatory update

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  1. Care Sector – regulatory update

  2. Introduction • Black Swan Care Group • Keoghs Solicitors • Overview • State of health and social care and how the CQC inspect • Case Study • Police, CQC, HSE and EHO investigations and prosecutions • Sentencing • Inquests • Civil Claims • Practical tips for handling investigations • Steps to take now

  3. State of Health and Social Care Adult Social Care overall ratings by type of service

  4. Current Overall Rating by Size and Type

  5. Adult Social Care ratings – Overall and by key question

  6. NHS acute hospitals ratings - Overall and by key question

  7. Enforcement actions against locations rated as inadequate

  8. Case study

  9. Notifications • Ambulance • Police • CQC • RIDDOR – HSES/EHO • Safeguarding • [Coroner] • Insurers/brokers

  10. Police • Manslaughter • corporate manslaughter if way in which provider’s activities are managed causes a death due to a gross breach of duty of care • gross negligence manslaughter – gross breach of duty causes death • Wilful neglect • offence for a care worker to ill-treat or wilfully neglect an individual under their care • a care provider commits an offence if: • an individual providing care as part of the care provider’s arrangements ill-treats or wilfully neglects another individual under their care; • the care provider’s activities are managed or organised in such a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated or neglected; and • in the absence of the breach, the ill-treatment or wilful neglect either would not have occurred or would have been less likely to occur

  11. An Inspector Calls • CQC take lead for safety and quality of treatment involving patients and service users with CQC registered providers - Memorandum of Understanding • The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 • Regulation 12: care and treatment must be provided safely • Regulation 13: service users must be protected from abuse and improper treatment • Regulation 14: service users must be provided with sufficient nutrition and hydration • Can prosecute if breach results in service user being exposed to avoidable harm or significant risk of such harm occurring • Defence where registered persons took all reasonable steps and acted with due diligence • HSE/LAs deal with patients and service users of non-registered providers and workers, visitors and contractors

  12. CQC investigation (safe care and treatment) • Gain reasonable access to premises • Interviews • Preparation and support • Conflicts • Collect evidence • PACE interview and response • interview • written response • representations • Impact on Home

  13. Legal status of guidance Health and Social Care Act 2008: Regulation 12(1) “Providers should consult nationally recognised guidance about delivering safe care and treatment and implement this as appropriate.”

  14. Enforcement decision tree

  15. Recent experience of safety issues • Shower chair collapse • Resident found on main road • Failure to provide medication • Fall from hoist • Lack of risk assessments for challenging behaviour • Burn on hot pipes • Use of unprotected stairs • Window restrictors • Pressure sores

  16. CQC prosecution criteria • Avoidable harm or significant risk of such harm occurring • Services provided without consent • Failure to provide reports on complaints or good governance • Failure to notify relevant person and provide support after notifiable safety incident • Failure to comply with a requirement, Warning Notice or condition • Provision of false information • Obstruction of CQC inspectors • Gravity of incident could undermine public confidence if provider not held to account • Disregard for requirements of a registered person • Repeated or multiple breaches • Breaching of fundamentals of care • Enforcement sends a broader message to a sector and encourages improvement

  17. Avoiding a prosecution • Other sanctions • Improvement Notice and appeal • Demonstrating good systems (reasonable practicability; due diligence) • Documentation • Oral evidence • Inquest • Supporting staff • Co-operation with the regulator • Family

  18. Prosecution • Charges • Failure to provide safe care and treatment (unlimited fine) • Provider • Registered Manager • Prosecution case summary • Basis of plea • Court process • Role of barrister

  19. Sentencing Guidelines • Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene • A stepped approach to sentencing • Determine offence category – culpability and harm • Starting point for fine and range • Proportionality, guilty plea reduction and other orders • Applicability to CQC prosecutions • Our experience

  20. Sentencing - culpability

  21. Sentencing - harm

  22. Sentencing

  23. Plea in mitigation • Basis of plea • culpability and harm • Causation • Previous convictions • Evidence of steps taken to voluntarily remedy problem • Co-operation with CQC • Good health and safety record • Effective health and safety procedures in place • Self-reporting, co-operation and acceptance of responsibility • Impact on service users • accountancy evidence • Timely guilty plea

  24. Sentence • Fine • Victim Surcharge • Costs

  25. Successful CQC prosecutions of adult social care services

  26. Other Care Home significant prosecutions 2016 to 2017 • Feb 2016 Sherwood Rise Corporate Manslaughter £300,000 Gross Neg Manslaughter 3 years 2 months Section 37 1 year suspended • Mar 2016 Shaftesbury Group Fire Offences £380,000 • May 2016 BUPA Section 3 HSWA £400,000 • Sept 2016 Maria Mallaband Section 3 HSWA £1.6m • Sept 2016 Embrace All Section 3 HSWA £1.5m 9 months suspended

  27. Coroner’s investigation • Who, when, where and how • Interested persons • Rule against self-incrimination • Conclusions • Prevention of future death report

  28. Civil claims • Civil liability • Damages

  29. Practical tips for handling the investigation • Check policy cover • Notifications – CQC; HSE; LA; Coroner; other insurers; broker • Duty of Candour • Criminal Investigation – representation and conflicts • Documents – preserve evidence; retain privilege • Set a strategy

  30. Press • Managing the press • Drafting press release

  31. Steps to take now • Discuss health and safety at Board level • Ensure safety management is a top priority • Review the crisis management policy • Assess immediate areas for improvement • Be pro active with audits • Document good safety practices • Respond to near misses and learn from them • Make sure adequate insurance cover is in place • Build a rapport with your inspector • Do not be afraid to consult with outside professionals

  32. Contact details Tom Lyons Managing Director tom@blackswan.co.uk 01603 507596 07900690067 Chris Newton Partner cnewton@keoghs.co.uk 02381 907002 07939 527751

  33. Contact details Bill Dunkerley David Whittaker Associate & Solicitor Advocate Barrister Keoghs 2 Hare Court bdunkerley@keoghs.co.ukclerks@2harecourt.com 01204 678905 020 7353 5324 07711 017893

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