England

Under the 1974 Act employers are required to ensure the health, safety and welfare of employees in the workplace ‘so far as is reasonably practicable’. Certain matters are specifically mentioned, such as the use, handling and storage of articles and materials, safely maintaining the workplace and systems of work, and the adequate provision of facilities.

Breach of this provision is an offence.

The Act also places general requirements on workers to take reasonable care for their own health and safety and that of other people who may be affected by their acts (or omissions) at work. Workers are also required to cooperate with employers to meet the employer’s health and safety duties.

Breach of this provision is an offence.

Regulations which govern the provision and organisation of social care are primarily focused on the health and safety of individuals who use the service but they also provide protection indirectly for the health and safety of care workers.  Regulation 12 provides for ‘safe care and treatment’. It states that care and treatment must be provided in a safe way and that providers must demonstrate that they have done everything reasonably practicable to provide safe care and treatment (our emphasis). The safety of service users is the dominant value in the regulation of social care, according to Health and Social Care Act 2008 (as amended 2015). It is therefore interesting to note that breach by providers of the parts of the two key regulations about health and safety (Regulation 12 and Regulation 15) do not directly constitute criminal offences.

Regulation 12(2)(a) is about risk assessment. Registered providers must assess risks to service users. Guidance states that these should be completed and reviewed regularly and include plans for the management of risk.  The planning and delivery of care should be based on these risk assessments,

Breach of this Regulation is an offence if it results in avoidable harm to a person using the service or exposes a service user to significant risk of harm. The CQC may also take [regulatory action] and the CQC must refuse registration if it is not satisfied that providers can comply with the provisions.

Regulation 12(2)(b) requires the mitigation of risk. Providers must do all that is reasonably practicable to mitigate risks and are required by the regulations to consult ‘nationally recognised guidance’ about delivering safe care, applying this as appropriate (our emphasis). CQC guidance expects necessary adjustments to be made whether to premises, equipment, staff training, processes, or practices in any aspect of care and treatment.

Breach of this Regulation is an offence if it results in avoidable harm to a person using the service or exposes a service user to significant risk of harm. The CQC may also take [regulatory action] and the CQC must refuse registration if it is not satisfied that providers can comply with the provisions.

Regulation 12(2)(c) addresses matter of staff competence and providers must ensure that ‘persons providing care or treatment to service-users have the qualifications, competence, skills and experience to do so safely’.  CQC Guidance reiterates the requirement for staff to work only within the scope of their qualifications, competence, skills and experience, and expects them to ‘be encouraged to seek help when they feel they are being asked to do something that they are not prepared or trained for’. Guidance also makes specific mention of the need for appropriate supervision when staff are not yet competent in specific skills and that providers ‘should have and implement up to date induction and training plans for the safe operation of premises and equipment’.

Breach of this Regulation is an offence if it results in avoidable harm to a person using the service or exposes a service user to significant risk of harm. The CQC may also take [regulatory action] and the CQC must refuse registration if it is not satisfied that providers can comply with the provisions.

Regulation 12(2)(d) is concerned with the safety of premises. CQC guidance expects providers to have and implement up to date induction and training plans for the safe operation of premises, including incident reporting and emergency and contingency planning. Breach of Regulation 12 is an offence if it results in avoidable harm to a person using the service or exposes a service user to significant risk of harm. The CQC may also take [regulatory action] and the CQC must refuse registration if it is not satisfied that providers can comply with the provisions.

Regulation 15 sets out requirements for safe premises and specifically requires that, for premises to be safe, they must be clean, secure, suitable for the purpose for which they are being used, properly used and maintained. There is a specific requirement to ensure ‘appropriate’ standards of hygiene. The CQC Guidance in respect of Regulation 15(1) about clean premises expects providers to operate a cleaning schedule, to ensure that staff with cleaning responsibilities have appropriate training and that domestic, clinical and hazardous waste and materials are lawfully managed. Guidance also expects providers to ‘take action without delay when shortfalls are identified’. While this Regulation exists essentially to protect service users, there are also health and safety benefits for staff in ensuring that premises and equipment are properly maintained, used and cleaned. However, there are also risks to staff in relation to hazardous materials including biohazard and the use of cleaning products.

Importantly the regulatory requirement for ‘premises’ to be clean, secure and suitable does not include the private homes of individuals in receipt of homecare. This means that registered providers of social are not responsible for reducing risks to care workers in domiciliary settings beyond their general duties as employers under the Health and Safety at Work Act 1974 to ensure a safe place and systems of work ‘so far as is reasonably practical’.

Breach of Regulation 15 is not an offence, but the CQC can take [regulatory action].

CQC Guidance for Providers on Meeting the Regulations (2015)

Health and Safety at Work Act 1974, sections 2 and 33(1)(a)

Regulation 12(2)(e) is about the safety of equipment. CQC Guidance sets out expectations that equipment is ‘available in sufficient quantities’. It also is clear that providers retain legal responsibility under regulation 12 when they delegate responsibility through contracts or legal agreements to a third party, independent suppliers, professionals, supply chains or contractors. They must therefore make sure that the regulatory requirements about equipment are adhered to as responsibility for any shortfall rests with the provider. Staff should have necessary training and skills for the safe use of equipment. Breach of Regulation 12 is an offence if it results in avoidable harm to a person using the service or exposes a service user to significant risk of harm. The CQC may also take [regulatory action] and the CQC must refuse registration if it is not satisfied that providers can comply with the provisions.

Regulation 15 also sets out requirements about equipment. Service providers must ensure that equipment is clean, secure, suitable for the purpose for which it is being used, properly used and maintained. There is a specific requirement to ensure ‘appropriate’ standards of hygiene. CQC Guidance relating to Regulation 15 (1) also expects equipment to be operationally safe, maintained and serviced (and renewed / replaced if necessary); and that staff are properly trained to use the equipment. Regular health and safety risk assessments of equipment are also expected.

Importantly, the regulatory requirements which relate to ‘equipment’ do not apply to equipment in a person’s own home unless the equipment has been provided the service provider. This means that registered providers of social are not responsible for reducing risks to care workers in domiciliary settings beyond their general duties as employers under the Health and Safety at Work Act 1974 to ensure a safe place and systems of work ‘so far as is reasonably practical’.

Breach of Regulation 15 is not an offence, but the CQC can take [regulatory action].

CQC Guidance for Providers on Meeting the Regulations (2015)

Health and Safety at Work Act 1974, sections 2 and 33(1)(a)

Regulation 15(2) requires registered providers to maintain standards of hygiene which are appropriate for the purpose for which premises and equipment are being used.  CQC guidance asserts that providers must follow the Health and Social Care Act 2015 Code of Practice on the prevention and control of infections.

In addition, premises and equipment must be cleaned or decontaminated in line with current legislation and guidance, including after each use of equipment by different service users.  All staff must understand the risk to people who use services if they do not adhere to CQC guidance.

Breach of Regulation 15 is not an offence, but the CQC can take [regulatory action].

CQC Guidance for Providers on Meeting the Regulations (2015)

Health and Social Care Act 2008: code of practice on the Prevention and Control of Infections (2015)

Regulation 12(2)(h) address matters of infection control. Providers must assess the risk of infection and CQC guidance expects that in so doing they consider the link between infection prevention and control, antimicrobial stewardship, the management of medicine and general cleanliness. As explained above, the law says that the CQC must take the Code of Practice on the Prevention and Control of Infections into account when making decisions about registration. By following the Code, providers can show how they meet this regulation but they may be able to lawfully demonstrate that they meet this regulation in a different way (equivalent or better) from that described in the Code.  Regulation 12(2)(h) also requires providers to prevent, detect and control the spread of infections, including those that are health care associated.

Health and Social Care Act 2008: Code of Practice on the Prevention and Control of Infections (2015)

Regulation 17 (good governance) requires service providers to ‘assess, monitor and mitigate the risks relating to the health, safety and welfare of service users and others who may be at risk which arise from the carrying on of the regulated activity’ (sic). ‘Others’ extends to staff and this is explicitly noted in the CQC Guidance. The Guidance also expects service users to ‘seek and act on feedback’ from various groups, including staff in order to ‘continually evaluate the service and drive improvements’. As above, the primary focus here is on improvements that benefit those using the service, but there are also implications for staff welfare and safety.

Breach of Regulation 17(2)(b) is not an offence, but the CQC can take [regulatory action].

CQC Guidance for Providers on Meeting the Regulations (2015)

Under the Equality Act 2010, workers protected from direct and indirect discrimination, harassment and victimisation in their workplaces on the grounds of ‘protected characteristics’.  The characteristics including sex (gender), race, religion, disability, age and sexual orientation. ‘Harassment’ protection relates to behaviour that violates a person’s dignity, or creates a degrading, humiliating, hostile, intimidating or offensive environment on grounds of a protected characteristic and include harassment from employers or managers, fellow workers and individuals using services.

Under Regulation 12, a service provider must ensure that care must be provided safely and must ensure that those providing care have the qualifications, competence, skills and experience to do so safely.

Breach of this provision, or any part of it, is a criminal offence if it results in avoidable harm or significant risk of harm to a person using the service. The CQC can also take [regulatory action] and must refuse registration if it is not satisfied that the provider can and will continue to comply with the regulation.

Things that a careworker must do to ensure that care is provided safely include:

(a) ‘assessing the risks to the health and safety of service users of receiving the care or treatment’;

(b) ‘doing all that is reasonably practicable to mitigate any such risks’

(d) ensuring that premises are safely used;

(e) ensuring that equipment is safely used;

(g) managing medicines properly and safely;

(h) assessing the risk of, preventing, detecting and controlling the spread of infections.

These aspects imply specific needs for [staff training]. The CQC Guidance includes expectations that providers include training on the safe use of premises and equipment (including incident reporting and emergency and contingency planning) in staff induction, and that staff using equipment have the necessary training, competency and skills. The Guidance also expects that staff responsible for the management and / or administration of medicine are ‘suitably trained and competent’ and that this is kept under review; and that staff follow policies and procedures on the management of medicines.

Breach of this provision, or any part of it, is a criminal offence if it results in avoidable harm or significant risk of harm to a person using the service. The CQC can also take [regulatory action] and must refuse registration if it is not satisfied that the provider can and will continue to comply with the regulation.

Under regulation 12(2)(c), service providers must ensure that staff have the qualifications, competence, skills and experience to do so safely. The Guidance expects staff to be appropriately supervised when they are learning new skills, until they are competent, and that providers encourage staff to ‘seek help when they feel they are being asked to do something that they are not prepared or trained for’. The Guidance also expects providers to do ‘all that is reasonably practicable’ to mitigate risks to individuals, including using ‘risk assessments about the health, safety and welfare of individuals’ to make necessary adjustments, including to staff training.

CQC Guidance for Providers on Meeting the Regulations (2015)

The CQC guidance on Regulation 12(2)(d) and (e) relating to the safe use of premises and equipment

The CQC Guidance expects that health and safety concerns relating to an individual, such as allergies or ‘limitations relating to the person’s needs and abilities’ are included in their care plan and that staff follow these care plans.