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Published 6 marzo 2018
The Care Quality Commission (CQC) and the Health and Safety Executive (HSE) have published a new Memorandum of Understanding ('MoU'), which replaces the MoU issued in April 2015.
At a glance:
Since the MoU between the CQC, HSE and Local Authorities came into effect on 1 April 2015, the regulators have sought to distinguish their enforcement roles within the health and social care sector.
The revised MoU provides greater clarity as to the respective responsibilities of the CQC, HSE and Local Authorities, in part, by expanding on the examples of incidents that fall to the CQC and HSE/LAs respectively. The changes include:
This is the most significant change. Historically the HSE/LA would take the lead in investigating and prosecuting cases of Legionnaires' disease or where a risk of Legionella is identified. The revised MoU confirms that the CQC is now the lead enforcement body in relation to suspected cases of Legionnaires' disease in patients/service users or where there is a risk of Legionella proliferation to patients/service users where hot and cold water systems at CQC-registered premises have not been properly maintained.
The MoU confirms that the HSE/LA will remain the lead enforcement body where a member of staff develops Legionnaires' disease.
Under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, there is a broad duty under Regulation 12(1) to provide care and treatment in a safe way. This duty includes requiring the Registered Person to ensure that premises are safe for their intended purpose.
The revised MoU emphasises that the definition of premises is very broad "and includes any building or other structure or machinery physically affixed to the building, any surrounding grounds or a vehicle". This wide definition of premises emphasises the significant responsibility on both Registered Providers and Registered Managers to ensure that not only buildings, but grounds and vehicles are properly used and maintained. For example, where a patient/service user is injured when leaving an appointment due to a pothole in a clinic car park, the Registered Person could be prosecuted by the CQC under Regulation 12.
The MoU clarifies that where a service user is injured whilst receiving care in their own home from a regulated domiciliary care agency, the CQC will be the lead enforcement body.
The CQC will be the lead enforcement body where patients/service users travelling in an ambulance are injured because their wheelchair is not properly secured, for example. Clearly any CQC investigation would be conducted in liaison with the police who will have a primary obligation to investigate any road traffic offences in the first instance.
As a general principle, the MoU confirms that when considering the circumstances of a specific incident, the primary consideration is whether the injured person is a patient/service user and whether the service provider is registered with the CQC. If that is the case, the responsible authority for investigation and enforcement will normally be the CQC unless the police have primacy.
In addition to considering whether clinical care and treatment is provided in a safe way, we can anticipate that the CQC will be paying greater attention to the physical environment in which the care and treatment is provided.
Our team combines specialist health and social care experience with criminal expertise to provide expert support to public and independent sector providers in the event of HSE or CQC enforcement action, including:
If you need advice relating to a CQC or HSE investigation or potential prosecution, please contact Tracey Longfield on: +44 (0)113 2514922 or email@example.com.
+44 (0)113 251 4922
+44 (0)191 404 4177
+44 (0)113 251 4796
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