Derbyshire Council fined £500,000 for failure to provide safe care

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19 December, 2019

Derbyshire County Council have recently been fined £500,000 following the first prosecution brought by the Care Quality Commission (CQC) against a local authority since the watchdog was given powers in 2015 to prosecute health and social care providers for failing to provide safe care and treatment.

Notably, the Council pleaded guilty at the Magistrates Court, and Judge Jonathon Taaffe stated that the fine would have been more but for the early guilty plea.

Facts

The case arose out of an incident at The Grange Care Home in which Audrey Allen, an 80 year old woman, sustained injuries which led to her death on 16 April 2016. Prior to the incident, The Grange Care Home was rated as 'good' by the CQC.

Miss Allen had a documented history of falls and was living with dementia and other medical issues when she was admitted to The Grange on 3 December 2015. Miss Allen suffered several falls and losses of balance during her three-and-a-half month stay at the care home.

The CQC said there were numerous instances where she was described as being unexpectedly on the floor and despite these incidents, the council "failed to adequately assess and reduce the risk of her falling". The court heard that the Council did not have an up-to-date falls policy, there was a shortage of senior staff due to restructuring by the council, no assessment of Miss Allen's needs had been carried out and no measures had been put in place to protect her.

Miss Allen fell while in a communal area of the home on 25 March 2016. Staff members took Miss Allen to her bed and although she reported pain in her left side, no medical advice was sought that day.?The following morning, staff found Miss Allen unresponsive in bed and they called for an ambulance. Paramedics were not informed that Miss Allen had suffered a fall the previous evening or that she had reported being in pain. Miss Allen was taken to Chesterfield Royal Hospital where X-rays identified twelve fractured ribs. These fractures lacerated one of Miss Allen's lungs, leading to a haemorrhage which caused her death on 16 April.

At trial

Ryan Donoghue, prosecuting, said: "Audrey Allen was known to be at high risk of falling, yet Derbyshire County Council failed to adequately assess or meet her needs. The council has accepted that its falls policy was not fit for purpose or properly implemented, that protective measures to reduce the risk of Miss Allen falling were not in place and that it should have referred her to a falls specialist."

The Judge addressed Miss Allen's family and said: "Miss Allen had the right to a comfortable end to a dignified life. She, her family and friends were totally let down. Derbyshire County Council fell far below the standards of safe care and treatment that Miss Allen should have been able to expect."

Rob Assall-Marsden, Interim Deputy Chief Inspector for Adult Social Care for CQC, said: "This was a serious failure on the part of Derbyshire County Council. As a provider of care services, it had a specific legal duty to ensure care and treatment was provided safely to Miss Allen. They failed to do this by not ensuring risks had been fully assessed, and by not implementing measures to prevent harm to Miss Allen'.

Lessons learnt

Derbyshire County Council Leader Cllr Barry Lewis said that the Council had implemented a number of changes to do its best to ensure this could not happen again. These measures included:

Reviewing and revising its Falls Policy.

Establishing a Quality and Improvement Board to oversee the delivery of a "Quality Improvement Plan."

Increasing staffing in the service.

Implementing changes to its pre-admission assessments.

Compulsory "falls-prevention" training for staff.

The law

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 Regulation 22 reads (our emphasis):

(2) a registered person commits an offence if the registered person fails to comply with a requirement of regulation 12, 13(1)-(4) or 14, as read with regulation 8, and 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 misrepresentation of money or property, any loss by a service user of the money or property concerned.

(4) But it is a defence for a registered person, or (in the case of regulation 20(2)(a) and (3)), a health service body, 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 12 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 intends to prevent people from receiving unsafe care and treatment and to prevent avoidable harm or risk of harm. Providers must assess the risks to people's health and safety during any care or treatment and ensure that staff have the qualifications, competence, skills and experience to keep people safe. Providers must make sure that the premises and any equipment used is safe and available in sufficient quantities. Medicines must be supplied in sufficient quantities, managed safely and administered appropriately. Providers must prevent and control the spread of infection.

The CQC has stated that it understands that there may be inherent risks in carrying out care and treatment, and will not consider it to be unsafe if providers can demonstrate that they have taken all reasonable steps to ensure the health and safety of service users and to manage risks that may arise during care and treatment.

However, the CQC can (and will) prosecute for breaches of the regulations if the breach results in avoidable harm/significant risk of harm.

The CQC must refuse registration if providers cannot satisfy them that they can and will continue to comply with Regulation 12.

Regulation 13 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 intends to safeguard service users from suffering any abuse or improper treatment while receiving care and treatment. Improper treatment includes discrimination or unlawful restraint, which includes inappropriate deprivation of liberty. To meet the requirements of this regulation, providers must have a zero tolerance approach to abuse, unlawful discrimination and restraint.

Providers must have robust procedures and processes to prevent people using the service from being abused by staff or other people they may have contact with when using the service, including visitors.

Abuse and improper treatment includes care or treatment that is degrading for people and care or treatment that significantly disregards their needs or that involves inappropriate recourse to restraint. For these purposes, 'restraint' includes the use or threat of force, and physical, chemical or mechanical methods of restricting liberty to overcome a person's resistance to the treatment in question.

Where any form of abuse is suspected, occurs, is discovered, or reported by a third party, the provider must take appropriate action without delay. Action includes investigation and/or referral to the appropriate body.

CQC can prosecute for a breach of parts 13(1) to 13(4) if breaches result in avoidable harm/significant risk of harm.

Regulation 14 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 intends to ensure that service users have adequate nutrition and hydration to sustain life and good health and reduce the risks of malnutrition and dehydration while they receive care and treatment. Where it is part of their role, providers must make sure that people have enough to eat and drink to meet their nutrition and hydration needs and receive the support they need to do so. People must have their nutritional needs assessed and food must be provided to meet those needs whilst taking into account people's preferences, religious and cultural backgrounds.

The CQC can prosecute for a breach of this regulation or a breach of part of the regulation if a failure to meet the regulation results in avoidable harm to a person using the service or a person using the service is exposed to significant risk of harm. The CQC do not have to serve a Warning Notice before prosecution and may also take other regulatory action.

Comment

The findings of this case and the significant fine imposed on Derbyshire County Council emphatically reinforces the need for care providers to continually assess and reduce risks and to take necessary actions to avoid foreseeable risks materialising.

It is widely acknowledged that the adult social care system is under immense strain financially, but also in terms of skill retention and staffing levels. High quality recruitment, management, training and adherence to safe systems and policies are never more necessary when services are under pressure, as oversights so readily lead to civil claims and Inquest investigations.

For more information contact Ridwaan Omar in our Insurance department via email or phone on 01254 222457. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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