Crown Censure for the MoD after health and safety failings
In April 2017 Mr Clegg was admitted as a resident of Fordinbridge Care Home, one of Sentinel’s five homes. Only six months later on 5 November 2017, Mr Clegg, then aged 56, sadly died in hospital from Legionella Pneumonia, a complication arising from exposure to Legionella bacteria. In March 2019, a coroners’ inquest conducted following Mr Clegg’s death concluded that he had contracted the Legionella bacteria at Fordinbridge.
The Care Quality Commission (CQC) launched a criminal investigation into Sentinel Health Care and its treatment of Mr Clegg, resulting in the company pleading guilty to two charges under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the 2014 Regulations”). This is the first time the CQC has utilised its enforcement powers to prosecute a provider whose conduct has caused a person to contract Legionella.
The regulation and enforcement responsibility for health and safety incidents occurring within the regulated health and social care sector was transferred in April 2015 from the Health and Safety Executive to the CQC, the independent regular of health and social care in England. Now, care homes such as Sentinel, are bound by the obligations and duties set out within the 2014 Regulations, standards which were introduced following the Mid Staffordshire NHS Inquiry.
Relevant to Mr Clegg’s case was Regulation 12(1) of the 2014 Regulations, which states “care and treatment must be provided in a safe way for service users”. Under Regulation 22(2) it is an offence to fail to comply with Regulation 12(1), where such failure results in:
(a) avoidable harm (whether of a physical or psychological nature) to a service user,
(b) a service user being exposed to a significant risk of such harm occurring, or
(c) in a case of theft, misuse or misappropriation of money or property, any loss by a service user of the money or property concerned.
It is a defence for an accused to prove that they took all reasonable steps and exercised all due diligence to prevent the breach of any of those regulations that has occurred (Regulation 22(4)).
In Sentinel’s case, it was accepted that they had failed in respect of Regulation 22(2)(a) and (b), the company was fined £150,000 and ordered to pay £17,500 in prosecution costs and a £170 victim surcharge.
Whilst prosecutions remain a relatively rare tool used by the regulator, who have the power to issue Requirement and Warning Notices instead, the CQC does have a history of pursuing breaches of the 2014 Regulations through the criminal courts where justified. Southern Health NHS Foundation Trust found themselves in this position in 2017 after a patient, admitted to their psychiatric unit, had climbed onto the roof of the unit and fell, sustaining life-changing injuries. The Trust was charged with under 12(1) and (22) of the 2014 Regulations whilst resulted in a £125,000 fine. Providers should therefore be aware that with courts afforded the power to issue unlimited fines for these breaches (Regulation 23(4)), the potential penalties for breaches if a prosecution is pursued are likely to be significant.
For further information on the issues raised in this blog post, please contact a member of our corporate manslaughter and health and safety team.
Sophie Wood is a Senior Associate in our Criminal Litigation team with extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations. Sophie has acted for individuals and companies involved in investigations brought by the Environment Agency, Health and Safety Executive and local authorities, and is a member of the firm’s cross-practice Health, Safety and Environment Group.
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