Care Sector – regulatory update

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

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

Current Overall Rating by Size and Type

Adult Social Care ratings – Overall and by key question

NHS acute hospitals ratings - Overall and by key question

Enforcement actions against locations rated as inadequate

Case study

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

Police Manslaughter Wilful neglect 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

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

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

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.”

Enforcement decision tree

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

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

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

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

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

Sentencing - culpability

Sentencing - harm

Sentencing

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

Sentence Fine Victim Surcharge Costs

Successful CQC prosecutions of adult social care services

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

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

Civil claims Civil liability Damages

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

Press Managing the press Drafting press release

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

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

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