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:
- Greater clarity on respective responsibilities for dealing with health and safety incidents;
- Confirms that the CQC will generally take the lead where a patient/service user is injured;
- Clarifies that the CQC is now the enforcement body in relation to suspected cases of Legionnaires' disease in patients/service users or where risk of Legionella is identified.
What changes are in the revised MoU?
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:
1. CQC to take action in relation to suspected cases of Legionnaires' disease in patients/service users or where risk of Legionella to patients/service users
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.
2. Wider definition of 'premises'
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.
3. Care at home
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.
4. Regulated transport providers
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.
What does this mean for registered providers?
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.