Shake up in health & safety enforcement in the healthcare sector

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

From April 1st 2015, the Care Quality Commission (CQC) has the power to prosecute for some breaches of health and safety law in England. This relates to cases where there are clear breaches of the Fundamental Standards and where patients or service users are seriously harmed because of unsafe or poor care. Under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, these new powers will put the CQC into the role of lead investigator and enforcement body. The Health and Safety Executive (HSE) will only become involved in exceptional circumstances.

The CQC will not have powers to take action against care workers, doctors or other individuals where power remains with the HSE, but they will have the power to act against registered providers and managers. Unregistered providers are not covered (except that the CQC can prosecute for failure to register). The HSE continue to have responsibility for enforcement against individuals and the Crown Prosecution Service will prosecute a new offence of "ill treatment or wilful neglect".

The interaction of the enforcing bodies will be interesting to see. Those of us engaged in the area know that the psyche of the Regulator is key to understanding how enforcement is approached. The current CQC/HSE Liaison Agreement is under review and we will all have to wait to see how the situation develops.

Scotland and Wales are exempt from these changes but both are looking with interest at how things shake out.