Following the publication of the report on the Public Inquiry into the Mid-Staffordshire NHS Foundation Trust, a Paper was presented at the February Health and Safety Executive (HSE) Board meeting. This addressed the recommendations made about HSE.

HSE gave evidence to the Inquiry on their policy on applying s3 of the Health and Safety at Work etc Act 1974 to incidents arising from quality of care or clinical judgement and the existence of a “regulatory gap” between HSE and HCC (later the Care Quality Commission (“CQC”)), the primary care regulator, where HSE decided not to investigate but the primary regulator either declined, or lacked the powers to act.

The lengthy three volume report contains 290 recommendations in total. Chapter 13, which focuses on the HSE, identifies 7 key themes and makes 4 recommendations with a further 10 of the other recommendations effecting HSE in some manner.

The 6 themes deemed to be critical of the current system employed by the HSE are:

  1. HSE was the only regulator with powers to prosecute during the period with which the Inquiry was concerned, but is unable or unwilling to do so;
  2. There is a need to properly define the responsibilities and management of the various healthcare regulators;
  3. There should be communication between agencies to avoid duplication of work and to avoid any gaps in the system;
  4. There is a lack of investigation by the HSE into individual cases raising health and safety issues in clinical contexts;
  5. There is a lack of systematic audit or analysis of incidents reported to the HSE from the Trust or other institutions; and
  6. The HSE, the Healthcare Commission (HCC), the CQC and the Department of Health (DH) have, between them, failed to address the regulatory gap between themselves and the HSE

To address these the following recommendations were made:

  1. Recommendation 87: Either the CQC should have power to prosecute 1974 Act offences or a new offence containing comparable provisions should be created under which the CQC has the power to launch a prosecution. The HSE is not the right organisation to focus on healthcare.
  2. Recommendation 88: The information contained in reports for the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations should be made available to healthcare regulators through the serious untoward incident system in order to provide a check on the consistency of Trusts’ practice in reporting fatalities and other serious incidents.
  3. Recommendation 89: Reports on serious untoward incidents involving death of, or serious injury to, patients or employees should be shared with the Health and Safety Executive.
  4. Recommendation 90: In order to determine whether a case is so serious, either in terms of the breach of safety requirements, or the consequences for any victims, that the public interest requires individuals or organisations to be brought to account for their failings, the HSE should obtain expert advice, as is done in the field of healthcare litigation and fitness to practice proceedings.

The HSE has welcomed Government proposals to introduce clear arrangements for the investigation of potential health and safety offences in healthcare services. They will work alongside the Department of Health and the Care Quality Commission to determine how the new arrangements will work before publishing them to assure the public the system will be proportionate, practical and watertight.

It is believed the new arrangements will help close the regulatory gap they identified in their evidence to the Inquiry and provide clarity and certainty for the public, services and regulators alike.

The full HSE response can be accessed here.