Prosecutions of health and social care organisations and their senior managers set to rise? - DAC Beachcroft

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Prosecutions of health and social care organisations and their senior managers set to rise?

Published On: 16 May 2014

Mid Staffordshire NHS Foundation Trust has been fined £200,000 and ordered to pay costs of £27,000 at Stafford Crown Court for health and safety breaches following the death of a diabetic patient, Gillian Astbury, in April 2007. Mrs Astbury, 66, died at Stafford Hospital after two nurses failed to give her the insulin she required. The court held that staff were working within a "system set to fail" and that responsibility for Mrs Astbury's death lay "firmly at the door of management at the highest level". The Judge held that the fine would have been £1 million had this been a private organisation and that it was only set at £200,000 due to the dire financial circumstances of the Trust (it is in administration).

Historically, the HSE has focussed its attentions on non-clinical failings in the health sector such as legionella outbreaks or faulty equipment and has shown reluctance to prosecute for clinical failings, which has been left to the Care Quality Commission who can prosecute only in limited circumstances. This case therefore symbolises a change in approach from the HSE, who are likely to increase their enforcement activity within the health sector and pursue prosecutions for clinical failings, resulting in high fines.

The anticipated increase in prosecutions brought against health and social care organisations for clinical failings follows the report of Robert Francis QC arising from the Mid-Staffs inquiry. Robert Francis expressed serious concerns that healthcare organisations had been effectively immune from criminal prosecution for clinical failings and advised that this must change. This has led to a consultation on a new set of Fundamental Standards for health and social care providers registered by the CQC, which are due to come into force on 1 October 2014. The new Regulations will enable the Care Quality Commission to prosecute health and social care organisations for a range of offences without issuing a warning notice first (as is required at present). The proposed maximum fine for a breach of these Regulations is £50,000, but the proposal is that this will made an unlimited fine in due course.

Further, the proposed new CQC registration requirements, also due to come into force in October 2014, impose a statutory Duty of Candour on health and social care providers. This means that providers and staff will be under a statutory obligation to inform patients or their families whether any death or severe/moderate harm has been, or may have been, caused to a patient by an act or omission of the organisation or its staff. This will also make defending these types of prosecutions difficult as providers and staff are obliged to raise concerns as soon as practicable.

Whilst it appears that the CQC may take up the enforcement mantle in the future, it is likely that there will also be increased activity from the HSE. We anticipate that cases such as that of Mrs Astbury will have a significant influence over the fine levels handed down to health and social care providers, as the courts take clinical failings leading to patient harm extremely seriously.

In conjunction with organisational change experts Lloydmasters, DAC Beachcroft is carrying out a national survey to identify how leaders of organisations can effectively manage health and safety through times of change. We will be consulting with our clients throughout 2014 with a view to, together, identifying best practice to minimise the risk of prosecution and create a safer workplace for staff and visitors. If you would like to be a part of this consultation, including completing our on-line survey, please contact Chris Baranowski, Tracey Longfield or Jo Forbes.