In 2014, the Health and Safety Executive (HSE) opened a consultation to seek views on how various bodies should take action when staff and people who are receiving health and care services experience avoidable harm in these environments. Subsequently, this draft document has now become the new Memorandum of Understanding between the Care Quality Commission (CQC), Local Authorities, and the HSE. The final document contains no changes to the draft liaison agreement and it will come into force on 1st April 2015.

Last year we reported on the successful prosecution of Mid Staffordshire NHS Foundation Trust  for which it was fined £200,000 for health and safety breaches related to the death of a diabetic patient. It would seem that the Police are also following the HSE in showing a greater interest in healthcare organisations since the publication of the Francis Report (resulting from the Mid Staffordshire NHS Foundation Trust Public Inquiry) which was seen most vividly in November of last year when McGoldrick Enterprises were charged with corporate manslaughter for the death of a resident at the Maine Private Nursing Home. This charge represents the first corporate manslaughter prosecution of a healthcare organisation.

The Memorandum of Understanding between the CQC and the HSE (and Local Authorities when they act on behalf of the HSE) puts the primary responsibility for investigating and enforcing, including prosecutions, patient safety issues when service users have been seriously harmed due to unsafe or poor care, into the hands of the CQC. The Memorandum of Understanding envisages the CQC using existing health and safety legislation to bring prosecutions against healthcare organisations. Under this arrangement, the HSE will provide a supporting role to the CQC as they seek to utilise both the familiar concepts of ‘fundamental standards’, to more unfamiliar health and safety principles such as the duty to do “everything reasonably practicable” to protect health and safety. While the HSE still retains primacy for investigating and enforcing certain types of health and safety incidents under the Memorandum of Understanding, the majority of these appear to be concerning employee safety rather than patient safety in healthcare organisations, and it is clear that the CQC has been charged with developing an effective way of utilising the existing legislation available to it so that it (rather than the HSE) can successfully fill the regulatory gap for patient safety.

It remains to be seen how this new Memorandum of Understanding will function in practice, and it will be interesting to hear the views of healthcare organisations, particularly in relation to their expectations as to how the CQC will perform as lead investigator and enforcement body. Moreover, the new system will rely on good communication not just between the CQC and the HSE, but also between the diverse group of organisations with a safeguarding or safety function (e.g. the Police, Local Authority Safeguarding groups etc.), something that has been difficult to achieve in the past.