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29/01/2013 - Health and Safety: Are you “criminally negligent”?

Failure to undertake basic checks and training can amount to criminal negligence. Recent judgments in a number of tragic cases have highlighted the significant consequences of failures for care providers and supported living providers – including landlords!

Paul Cundy, 64, suffered from a severe learning disability, cerebral palsy and epilepsy and was unable to talk. He rented accommodation for people with severe learning disabilities. His landlord was Comhome Limited and his care was provided by a separate company, Solor Care Group ("Solor”). In December 2008, Mr Cundy was lowered into a bath by a care worker using a hoist. Entering in the water, he immediately recoiled. The care worker raised him out of the bath believing he was having a seizure. A second carer checked the bath water by hand and added some cold water, before Mr Cundy was again lowered into the bath.

He began thrashing and moaning in pain and, raising him from the bath, the carers noticed that his skin was severely scalded and was hanging off on his feet, buttocks and elbow. Mr Cundy had suffered 10% (second degree) burns and required hospital treatment for four weeks.

An investigation by the Health and Safety Executive (HSE) revealed that there was no thermostatic mixing valve (TMV) fitted to the bath. The TMV would have regulated the water temperature to below 44 degrees celsius – as recommended in national guidelines. Worryingly, the HSE found that a TMV had been fitted but had been disconnected in 2002.

Furthermore, four internal maintenance reports highlighted that the TMV for the bath wasn’t working and had identified it as a "high risk” because the water from the tap was coming out at just under 60 degrees celsius, significantly higher than the recommended safe level. Despite this risk, no action appears to have been taken to connect the TMV, nor was there any thermometer or formal control system for checking the water temperature. Carers were using a variety of unsatisfactory methods such as checking by hand or with an elbow. The HSE also identified inconsistent and limited staff training.

Solor, as the care provider had drawn up Mr Cundy’s care plan, which contained no reference to the risks of water scalding and there was no system in place to ensure that carers had read or understood the care plan. Both Solor, as care provider, and Comhome Limited, the landlord, pleaded guilty to breaches of Section 3(1) of the Health and Safety at Work Act 1974. Solor Care was fined £10,000 and ordered to pay costs of £28,000, Comhome Limited was also fined £10,000 and was ordered to pay costs of £34,000.

HSE inspector Jo Fitzgerald explained: "This appalling incident could and should have been avoided. It resulted in agonising pain for Mr Cundy, a vulnerable member of our society who was deserving of the very highest standards of care and protection.

Comhome’s failures included failing to ensure bath water temperatures were properly regulated via an operating TMV, failing to work with Solor to resolve the issue with the TMV, and failing to act on repeated warnings by maintenance staff about the dangers of hot water where no TMV was fitted.

Solor, in turn, also failed to ensure the TMV was working or to have proper systems in place to check bath water temperatures. They failed to provide proper training for staff, failed to provide a thermometer for the care workers, failed to properly assess scalding risks and failed to follow its own company policies.

Both defendants were criminally negligent in dealing with an obvious and potentially lethal risk”

This case is a stark reminder to care home providers of the need to ensure that necessary safety equipment is operating correctly. It is also a stark warning to both care providers and landlords of supported living services, highlighting that both parties have a responsibility to ensure fittings such as TMV’s are in place and operating correctly. Such cases highlight the importance of communication between the care staff, the care provider and the landlord to ensure that any repairs are undertaken as soon as possible in order to ensure a safe environment for tenants.

Other recent prosecutions have been the result of more tragic incidents:

Annie Bradley, 78, died in 2008 from a head injury after falling from a hoist at the Harley House Nursing Home in Leicester. The hoist, which had a two-year life span but had been in use for nine years, was described in court as "totally defective”. The HSE found that the nurse and care assistants operating the hoist had limited training in manual handling. They also found that an unqualified member of staff had been completing maintenance checks at the home.

At the trial, in August 2012, the HSE’s lawyer told the Court "this tragic accident was entirely avoidable, foreseeable and, perhaps, the sadness is it wouldn’t have cost vast amounts of money to do what is fairly basic maintenance and provision of appropriate slings.”

Judge Robert Brown said that there had been significant failings in the maintenance of the hoist and sling and insufficient training of staff. He said that the owners of the home "lacked sufficient expertise in healthcare and nursing” and also commented that "health and safety must always be the primary consideration of any owner of a care or nursing home."

The home’s two owners were each fined £50,000 and ordered to pay £20,000 costs.

In another tragic case in 2010, 93 year old Elsie Beals asphyxiated after becoming trapped in the gap between her mattress and incorrectly fitted bed safety rails at Aden Court Care Home in Huddersfield. Leeds Crown Court was told that New Century Care Limited had failed to train staff to fit bed safety rails. Staff had also not been trained to carry out regular ‘in-use’ checks to ensure that bed rails remained properly adjusted, or to carry out risk assessments for their use.

At the trial, on 10 September 2012, the owners were ordered to pay £183,000 in fines and costs.

The law

The HSE takes breaches of health and safety law by care homes extremely seriously which is perhaps not surprising considering the extreme vulnerability of the physically and sometimes mentally disabled residents.

Section 3 of the Health and Safety at Work Act 1974 imposes a wide obligation on employers to ensure, so far as it is reasonably practicable, that non-employees (including service users, visitors, contractors etc) are not exposed to risks to their health or safety. The onus is on the employer to show that it took all reasonably practicable steps to avoid any risks.

Clearly, in the above cases, it is easy to see how repairs, maintenance checks and training could have been carried out which would have considerably reduced the risks posed to the service users who, in two of those cases, lost their lives as a result of the provider’s failure to take these simple steps. The Act is drafted so widely that it is extremely difficult to successfully defend a prosecution. If convicted, a provider could face a large fine and, in the case of individuals, possibly imprisonment.

Section 2 of the Act imposes a similar obligation on employers in respect of risks posed to employees.

So what can we learn from these cases?

Maintenance of equipment is critical. Equipment should be regularly checked for defects and records should be kept to evidence this. Providers also need to ensure that they comply with the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER) which require thorough examination of slings and hoists by a competent person every 6 months, or thorough examination in accordance with a Written Scheme of Examination drawn up by a competent person.

Equipment should not be used past its recommended length of usage and should be stored properly to avoid damage.

Crucially, staff must be provided with full and proper training to use equipment safely and also to recognise any possible defects.

Providers should also ensure they have written risk assessments and that these are regularly updated.

Failure by providers to undertake these simple steps can amount to criminal negligence. Providers may face prosecution by the HSE and/or enforcement action by CQC.

It is apparent that, in all of these cases, basic health and safety standards would have prevented these entirely avoidable accidents.

Liability of Company Directors

Providers also need to understand that operating as a limited company will not necessarily shield them from prosecution if an accident of this nature occurs. If a health and safety offence is committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the organisation, then that person (as well as the organisation) can be prosecuted under section 37 of the Health and Safety at Work Act 1974.

Recent case law has confirmed that directors cannot avoid a charge of neglect under section 37 by arranging their organisation’s business so as to leave them ignorant of circumstances which would trigger their obligation to address health and safety breaches.

Individual directors are also potentially liable for other related offences, such as the common law offence of gross negligence manslaughter. Under the common law, gross negligence manslaughter is proved when individual officers of a company (directors or business owners) cause death by their own grossly negligent behaviour. Conviction for this offence could result in life imprisonment.

Although provider’s might be facing significant fee cuts from local authorities, they are still under the same duty to ensure the safety of employees, residents and visitors and maintenance checks and replacement equipment can be onerous in both time and cost. However, it is vital that providers understand the obligations they are under – the implications of failing to take the required actions are likely to be far more costly!

Anybody facing prosecution for a health and safety offence should seek specialist legal advice as early as possible.

Authored by:

Laura Guntrip (show profile)

Published by:

Peter Grose (show profile)

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