Service providers’ duty of care

In the health and social care sector, ensuring the safety of patients, service users and staff is paramount. 
In 2024 the Care Quality Commission and Health and Safety Executive (HSE) published an updated Memorandum of Understanding (MoU). The MoU outlines the respective responsibilities of the HSE and the CQC in investigating health and safety incidents. A key factor in determining who holds responsibility for investigation and enforcement is the registration status of a service provider.

Respective responsibilities

The CQC is the lead inspection and enforcement body under the Health and Social Care Act 2008. The CQC will take the lead on ensuring the safety and quality of treatment and care, for service users receiving care from registered providers. The only general exception to this being where the police have primacy of an investigation. 

Where a provider is not registered with the CQC, the responsibility for inspection and enforcement will fall to the HSE or local authority. 

Specific examples of incident investigations

Annex A of the MoU sets out examples of incidents typically falling to the CQC and HSE/local authorities respectively. Incidents where the CQC takes the lead include, but are not limited to:

• A patient/service user falling from a window (premises issue directly relevant to care of vulnerable patients/service users).
• Severe scalding of a patient/service user in a bath/shower.
• Severe scalding/burnings from falling and getting stuck against hot pipes/radiators. 
• A patient/service user being seriously injured or dying after becoming trapped in bed rails.
• A patient/service user falling from a bed/chair due to inadequately maintained equipment.
• A patient/service user develops Legionnaires’ disease when a regulated activity is being carried out.

Relevant regulations 

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 impose a broad duty on service providers to provide care and treatment in a safe way. Two commonly breached provisions are Regulations 12 and 13. 

Regulation 12 states that service providers must provide safe care and treatment, and that the premises used are safe for their intended purpose. Regulation 13 places a duty on service providers to safeguard users from abuse and improper treatment, through taking preventative measures and effective investigative action. 

To date (since 2009) the CQC has prosecuted a total of 88 breaches of Regulation 12; breach of Regulation 12 being by far the most commonly charged offence by the CQC.  

Conclusion

The updated MoU serves as a timely reminder to health and social care providers, that the CQC is both able and willing to prosecute a variety of health and safety offences. In the past five years there has been a steady increase in prosecutions brought by the CQC, highlighting that investigation and enforcement powers are far from limited to the HSE’s jurisdiction.

 By familiarising themselves with the examples above and the applicable regulations, service providers can better navigate the regulatory landscape and safeguard themselves against enforcement action.

A version of this article first appeared in the February issue of the Caring Times. 

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