The HSE bares its teeth

October 3, 2013

The Health and Safety Executive has announced plans to prosecute Mid Staffordshire NHS Foundation Trust under the Health and Safety At Work Act. The regulator's new teeth will be sharp, write Chris Baranowski, Sally Roff and Tracey Longfield.

The HSE has confirmed that it will be prosecuting Mid Staffordshire NHS Foundation Trust over the death of a diabetic patient, Gillian Astbury, on 11 April 2007. The inquest into Gillian Astbury's death returned a narrative verdict of gross negligence to provide basic care, particularly in relation to the failure to administer insulin and measure blood-sugar levels on the day before her death.

The Trust has been charged under section 3(1) of the Health and Safety at Work Act 1974 for failing to ensure the safety of its patient as far as is reasonably practicable. Specifically, the HSE alleges that the trust failed to devise, implement or properly manage structured and effective systems of communication for sharing patient information, including in relation to shift handovers and record-keeping. Maggie Oldham, Chief Executive at the Trust, has apologised for the "dreadful care" received by Mrs Astbury, indicating that the Trust has accepted the HSE investigation findings. The first hearing is on 9 October 2013 at Stafford Magistrates' Court.

This prosecution comes on the back of the Mid-Staffs inquiry which exposed serious failings in clinical judgement and care. The subsequent report by Robert Francis QC identified a "regulatory gap" between HSE and the Care Quality Commission in their investigation of failings in clinical judgement and quality of care in healthcare settings. He concluded that this had led to a situation where healthcare organisations were in effect immune from criminal prosecution and that the gap "needs to be closed as a matter of urgency".

Following this stark warning, the government pledged that the HSE should be able to prosecute hospitals and other care providers in all cases of criminal negligence, including for failings in clinical judgement and quality of care, and would be adequately resourced to carry out that role.

The Francis report identified that the failure to properly regulate healthcare organisations was due to a lack of clear guidance on whether HSE or CQC should investigate complaints or accidents. Whilst the HSE is under a duty to investigate breaches of the Health and Safety at Work Act 1974 (where organisations fail to ensure the safety of their employees or non-employees), the guidance restricted their intervention in a clinical setting to major non-clinical risks such as trips and falls, scalding and electrical safety. CQC is responsible for investigating concerns about clinical judgement and quality of care, but has no power to prosecute under the Health and Safety at Work Act 1974. CQC can only prosecute under other legislation as part of an escalated enforcement policy around compliance, rather than the more immediate 'bite' of HSE prosecutions.

As Mr Podger (Chief Executive of the HSE) noted in his evidence, this led to a situation where a hospital trust could be prosecuted if a person is killed as a result of the use of a faulty trolley but not prosecuted if the death was the result of poor clinical care. He stated that it was not in the public interest to have “two regulators scrabbling around on the same patch”.

Having sufficient resources is clearly a major challenge for the HSE which faces budget cuts of 35% by 2014/2015. Despite Robert Francis QC's declaration that the HSE is “clearly not the right organisation to be focusing on health care”, Jeremy Hunt (Health Secretary) responded by directing that the HSE was the organisation best placed to prosecute healthcare organisations, a recognition that the HSE has the expertise in investigating and prosecuting in a criminal arena, unlike other regulatory bodies.

The government has stressed the importance of the HSE and CQC working collaboratively in identifying potential failings. In July 2013 a new inspection regime was announced to be overseen by the newly appointed Chief Inspector of Hospitals , Professor Sir Mike Richards. CQC will identify potentially criminally negligent events in hospitals and report to HSE who will investigate and, where appropriate, prosecute. The CQC has also appointed a Chief Inspector for Social Care, Andrea Sutcliffe, to extend the new regime to other parts of the health and care system.

Hospitals and healthcare organisations should therefore be prepared for greater scrutiny of serious incidents resulting from clinical issues, with associated cost impact following the introduction of Fee for Intervention in October 2012 under which HSE charges organisations £124 per hour for its investigation of alleged breaches of health and safety. The HSE has indicated that an investigation following an accident may cost an organisation tens of thousands of pounds.

The Mid Staffs prosecution announced this week is the first example of this "new dawn" where clinical care is actively investigated and prosecuted by the HSE.

Chris Baranowski and Sally Roff are partners and Tracey Longfield is an associate at DAC Beachcroft. Chris can be reached on 0113 251 4842 or by This email address is being protected from spambots. You need JavaScript enabled to view it., while Sally can be contacted on 0844 980 3430 or by This email address is being protected from spambots. You need JavaScript enabled to view it..