Health and Safety Enforcement in the NHS

1. Health and Safety Enforcement in the NHS David Sinclair Chartered Health and Safety Practitioner and Solicitor

2. Disclaimer This presentation and any accompanying notes are made available on the basis that no liability is accepted for any errors of fact or opinion they may contain. Professional advice should be obtained before applying the information in particular circumstances.

3. Guardian – 29 August 2013 “The Astbury case marks a turning point for the HSE since it is moving away from the traditional NHS role of holding trusts responsible for the physical state of infrastructure and ensuring it is safe, to one of prosecuting and policing a hospital’s clinical governance and administration of care.”

4. HSE response – 30 August 2013 “It is not the case that the Mid Staffs prosecution constituted a change in the HSE’s regulatory role in respect of the health service and it [HSE] had previously prosecuted NHS trusts in relation to similar incidents as that at Mid Staffs.” “The HSE’s current regulatory role in the health sector concerns cases in which there is evidence of safety management failings.”

5. R –v- Southampton University Hospital NHS Trust (2006) • Highest ever fine imposed on a NHS trust (although it was reduced on appeal); • Prosecution related to a purely clinical matter; • Many other cases of clinical systems failure on the HSE’s prosecutions database and in the press.

6. Section 3(1) duty • Not absolute but the onus is on a trust to show it took all reasonable and practicable steps; • The courts have defined an employer’s undertaking under section 3(1) widely; • R –v- Associated Octel (1996); • An offence is committed if people are “at risk”; • Test is an objective one – Jury to decide if everything reasonably practicable has been done.

7. Francis Inquiry • HSE accepted that the scope of section 3 is very broad; • Section 3 might apply to incidents that are not RIDDOR reportable; • There may be serious non-RIDDOR reportable patient safety incidents that the HSE should consider investigating.

8. Criteria for investigation • Death (or serious injuries) to patients; • Known health and safety standards; • A clear and likely causal link between the failure and the resulting harm; • Admissible evidence is likely to be available.

9. Patients First and Foremost “Where the Chief Inspector identifies criminally negligent practice in hospitals, the Care Quality Commission will refer the matter to the Health and Safety Executive to consider whether criminal prosecution of providers or individuals is necessary.”

10. CQC/HSE Liaison Agreement • Sets out the principles for liaison between the two regulators on unexpected deaths and serious safety incidents arising from systematic management failures by healthcare organisations; • States that the HSE has a role in investigating and enforcing patient safety under section 3 HSWA; • CQC notifies the HSE of patient deaths.

11. CQC/Monitor MOU • Intention is that the CQC and Monitor will work together; • Detailed protocols to co-ordinate activities; • Information and insight sharing; • Monthly operational collaboration meetings: • Share intelligence on FTs; • Identify potential regulatory concerns; • Highlight potential compliance issues.

12. Risk Assessment Framework Where the CQC issues a warning notice or takes stronger action, Monitor is: “Highly likely to investigate further and to consider whether a NHS foundation trust is in breach, or will be in breach of its licence.”

13. CQC Notices Essential outcome: • 10 - Safety and suitability of premises; • 11- Safety, availability and suitability of equipment; • 12 – Requirements relating to workers; • 16 – Assessing and monitoring the quality of service provision. Failures in these areas could also attract the attention of the HSE.

14. Guidance changes • September 2013 the HSE withdrew: • MHSWR ACoP and Guidance; • Successful Health and Safety Management (HSG 65); • Leading Health and Safety at Work (INDG 417).

15. Replacement Guidance • Managing for Health and Safety (HSG 65); • Leading Health and Safety at Work (INDG 417); • 4 other sets of web-based guidance; • HSG 65 and INDG 417 focus on ‘leadership’ and ‘management’.

16. HSE - Plan, Do, Check, Act

17. Key Points • Building a risk profile for the trust; • Board level leadership on health and safety; • Considering health and safety when making board and senior management appointments; • Having a specific board health and safety committee; • Providing health and safety training for board members and managers; and • Carrying out periodic, external reviews of health and safety.

18. The guidance provides: 3 Essential Principles of leadership; A 4-point agenda for embedding the Essential Principles; Summary of legal liabilities; Checklist of leaders; A list of resources and references. HSE/IOD Guidance – INDG 417 (rev 1)

19. Essential Principles • Strong and active leadership from the top; • Worker involvement; • Assessment and review.

20. The agenda consists of: Core actions for boards and individual board members that relate directly to the Trust’s legal duties; Guidance on implementing the core actions; Case studies; Web links to additional information. INDG 417 – Agenda

21. “Health and safety is integral to success. Board members who do not show leadership in this area are failing in their duty as directors and their moral duty, and are damaging their organisation.” HSE: Quote in Leading health and safety at work

22. How do I protect clients? Developed and provide: • Board level health and safety course (1 day); • ‘T2’ health and safety management course (2 day); • Health and safety compliance audit – HSG 65 and INDG 417.

24. Health and Safety Enforcement in the NHS