OPINION: Staying on the right side of the law as a care operator
Sam Lindsay, principal associate at law firm Mills & Reeve, provides a brief overview of general health and safety duties for providers looking to avoid prosecution.
Health care regulations are so often at the forefront of regulatory compliance discussions in the sector, but care home operators and care providers also need to be aware of their statutory health and safety duties too.
Why is it important?
Effective health and safety arrangements keep people safe and prevent avoidable harm.
If that isn’t reason enough, a provider who breaches its duties commits an offence, regardless of whether any harm results from the breach. Where harm does result, or where a breach is particularly egregious, then a provider may be prosecuted. Upon conviction, a provider faces an unlimited fine based on turnover, and individuals guilty of offences may face prison time.
In July 2023, providers operating an inpatient hospital were fined a combined £400,000 for failing to keep staff safe from violence.
What are the health and safety duties?
General duties in the Health and Safety at Work Act 1974 require employers to take steps to, so far as is reasonably practicable, ensure:
- the health, safety and welfare of their employees whilst at work; and
- the safety of others affected by their undertaking.
The act also requires those in control of premises to ensure so far as reasonably practicable that those premises are safe.
A provider is therefore responsible for the health and safety of not just its workforce and the people it supports but also visiting third party staff, family members and other persons who may be affected by its activity, or who come onto premises under its control.
Who regulates health and safety?
The Care Quality Commission (CQC) is the English enforcing body for health and safety where it concerns the provision of regulated activity by a registered provider, but the Health and Safety Executive or relevant local authority are responsible for enforcement otherwise. Following a fatal accident the police will investigate suspected homicide offences.
What about fire safety?
Fire is a particularly high-risk area for care providers, particularly residential services.
The Regulatory Reform (Fire Safety) Order 2005 is the main piece of legislation concerning fire safety for premises.
The order requires persons in control of commercial premises arrange for a competent person to complete a fire risk assessment and ensure premises conform to relevant standards. Guidance on fire safety for premises including residential care premises is published online at gov.uk.
You’ll also need to assess and control the risk from fire for individual people you support and in connection with activities too.
Fire safety enforcement is typically the responsibility of the local fire authority.
What does compliance look like?
Providers need to take all reasonably practicable steps to ensure people’s health and safety in an organised and sustainable way. This means:
- having an overarching health and safety policy;
- establishing an effective system for health and safety governance and oversight;
- staying up to date on health and safety developments;
- completing suitable and sufficient risk assessments to identify hazards, quantify risk of harm and identify the control measures necessary to mitigate the risk so far as reasonably practicable;
- implementing safe working arrangements based on the risk assessments; and
- documenting the arrangements and keeping them under review.
Your workforce will need to know about the arrangements relevant to their role, so consideration needs to be given to how information will be disseminated. Staff will also need role-specific training and refresher training to maintain competence.
