The Sentencing Council's Definitive Guideline (the Guideline) for health and safety, corporate manslaughter, and food safety and hygiene offences has significantly increased sentences and the care sector is starting to feel the effects. Gowling WLG's health and care experts look at some recent applications of the Guideline, which came into force on 1 February 2016 and must be used for offences sentenced after that date.
A national care home operator was fined £400,000 last month for the "inappropriate management" of bedrails at one of its homes. The case surrounded the death of one of the homes' residents, following a failure to ensure that their bedrail assessment was suitable and sufficient.
Despite the care home developing a policy on bedrail management, it was not fully implemented. Staff were not trained appropriately and assessments were neither conducted nor reviewed when required. In this case, the bedrail review should have identified further measures to prevent or reduce the risk of falls, but the staff carrying out the initial assessment were not adequately trained and therefore failed to identify further measures to protect the resident. HSE highlighted the need for homes to assess residents continually on an individual basis.
Although the largest so far in the care sector, this is not the first fine implemented by the Courts following the implementation of the new Guidelines. An NHS Foundation Trust was fined £200,000 on 27 May 2016 for failing to maintain a patient trolley. Following an investigation it was found that there was a lack of maintenance and training for the use of the trolley.
A pre-school nursery has also been fined £180,000 after a child was left unsupervised for one minute and 15 seconds and consequently chocked on a cube of raw jelly. Finally, although no injury resulted from the incident, a care home provider was fined £380,000 after a fire highlighted that almost half of the home's fire extinguishers had been condemned, fire doors had been wedged open and there was a failure to install safety measures identified in a risk assessment.
Implications
These recent cases demonstrate that creating a health and safety policy is not enough. Those in the care sector must also ensure that systems and procedures designed to identify risk, and then eliminate and reduce it are in place and regularly updated. Staff should be adequately trained so as to implement the policy, and audits carried out to check that action happens on the ground. The consequences, both financial and reputational, for breaching health and safety law are now significantly higher.
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