New CQC guidance – falls from windows
CQC has recently published new guidance as part of its series of “learning from safety incidents” resources on its website. The “falls from windows” guidance has been issued following a CQC prosecution in January 2018, where a provider and registered manager were fined more than £17,500 for failing to comply with relevant health and safety legislation. The prosecution resulted from an incident where a resident of a nursing home fell from his second-floor bedroom window with fatal consequences. The purpose of the CQC guidance is to inform providers about what steps they can take to prevent such an incident occurring in their service.
On 14 July 2016, a resident died after falling from a second-floor bedroom window. At the time, there were no window restrictors fitted. Prior to the accident, the resident had been identified as high risk of severe panic attacks and of falling.
The provider and manager admitted they failed to provide safe care and treatment by failing to take measures to prevent falls from windows. They had a duty to reduce, so far as possible, the risk to residents. The consequence of their failings meant that CQC held the provider and the manager to account for a serious failure to protect people from avoidable harm. CQC prosecuted for a breach of Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Court ordered the provider to pay a fine of £16,500 and £170 victim surcharge. The registered manager was ordered to pay a fine of £1,000 and £170 victim surcharge.
This is not an isolated case. There have been similar incidents reported in recent times, including a prosecution in October 2017 where a large national provider was fined £680,000 by Leeds Crown Court following an incident where a resident fell 30 feet from a window in the care home suffering life-changing injuries.
Not only can CQC use its prosecution powers where there are incidents of falls, but they can also, and are likely to, take enforcement action to safeguard against the risk to other residents. In such circumstances, CQC is likely to carry out a responsive inspection which may identify breaches and could lead to poor ratings.
The recent “falls from windows” guidance issued by CQC states that you must assess risks at your premises which include risks arising from the premises and also for individual residents. Where a risk is identified, adequate precautions must be taken. A full copy of the guidance can be found here.
In addition to the CQC guidance, the HSE has published a helpful information sheet called “Falls from windows or balconies in health and social care” and guidance titled “Health and Safety in care homes”. The HSE advice states that accident data obtained highlights “the serious issue of people who use health and social care services falling from windows or balconies in health or social care premises. These falls often result in fatal or serious injury to vulnerable people”. Although CQC is now the main prosecutor for safety incidents involving residents in care homes, there remains an overlap as HSE can still bring prosecutions.
On 1 April 2015, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 came in to force, giving CQC the power to bring criminal prosecutions against health and social care providers who fail to meet the fundamental standards.
In 2017, CQC stepped up the number of prosecutions, which included the first prosecution of an NHS trust for failure to provide safe care. It has recently been reported that there are 163 adult social care providers and 31 NHS trusts facing potential prosecutions by CQC.
The penalty for offences under the Regulations is an unlimited fine. A prosecution may also lead to adverse press reporting and CQC enforcement action, as well as court proceedings being published on CQC’s website and other sources, which may lead to loss of reputation.
How can we help?
We have been working in healthcare law for over 20 years and it’s one of our firm’s leading areas of expertise. We specialise in the regulation of health and social care services, regularly acting for independent social care providers, independent hospitals, NHS Trusts and GPs. We have the expertise to deal with prosecutions brought by the CQC and can help you by providing:
- Advice and representation during criminal investigations;
- Representation at interviews under caution;
- Defence of criminal prosecutions;
- Advice and representation at sentencing hearings;
- Advice and/ or training to reduce the risk of CQC prosecutions.
There may also be concurrent investigations and/ or enforcement action and we are also able to assist with advice and representation for those matters. Our specialist healthcare law solicitors have a national reputation, yet, because we are a regional firm, they come at an affordable cost.