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MoU between the Care Quality Commission (CQC), HSE and LAs in England

Summary

This guidance explains the arrangements for implementing the memorandum of understanding (MoU) between CQC, HSE and LAs as applied to healthcare and adult social care in England only. It comes into effect from 1st April 2015 to reflect CQC’s new enforcement powers.

Introduction

The MoU outlines the

There are additional illustrative examples and, where appropriate, further supporting information in appendices 1, 2 and 3 of this guidance.

Action - In England only

Referral of incidents and concerns to CQC

Incidents and concerns received from CQC

Background

CQC’s changing role

From 1 April 2015, CQC will have new enforcement powers which will enable it be an effective enforcement body for patient / service user health and safety matters, including investigating incidents, in England.

HSE’s investigation policy will remain unchanged – but as CQC will now become the better placed regulator in most instances, HSE will defer to CQC and will not investigate such incidents. The MoU confirms this for both HSE and LAs (in respect of residential care homes registered with CQC).

HSE’s guidance for the health and social care sector has been revised to reflect this.

There are limits to CQC’s remit, however, depending on the nature of the activities. There is no equivalent to HSWA Section 7, for instance. Therefore in a limited number of cases, CQC will correctly return certain incidents or concerns to HSE/LAs.  This will be relatively rare, however, and may occur after the registration details have been checked by CQC, or after initial enquiries have been made by CQC.  It has been agreed that these will be returned to a single point in HSE for monitoring and checking against the MoU criteria.  Some incidents may require joint or co-ordinated investigation

If there has been an incident at a provider that is not registered with CQC, but should be, then CQC can only deal with the non-registration aspect, and HSE/LA would deal with the specific non-compliance issue in line with its published policies. If the provider is not required to be registered with CQC, then the incident falls to HSE/LAs.

RIDDORs in health and social care

RIDDOR will continue to apply even though CQC will have the lead responsibility for patient and service user safety from 1 April 2015. 

Health and adult social care providers in England are statutorily required to report similar incidents to HSE and CQC. However, CQC may not learn of fatalities sufficiently quickly.

This duplication with RIDDOR is not ideal, but the solution requires changes in statutes and this cannot be achieved in the short term.

Organisation

None apply

Further references

Contacts

Appendix 1: Incidents that fall to HSE/LAs

  1. The injury is to a worker or visitor, not a patient or service user,
    • Nurses have developed dermatitis which is related to glove use
  2. The injury is to a patient or service user but this is outside CQC’s remit
    • A service user died from choking in a day care centre
      Comment: Some day care centres are not a regulated activity under CQC’s remit.
  3. More specific HSWA-related legislation applies
    • A service user contracts Legionnaires disease in a health / adult social care facility. This was linked to contamination of the hot water system. Failure to follow established standards as set out in the Approved Code of Practice and guidance ‘Legionnaires Disease: The control of legionella bacteria in water systems’ published by HSE.
      Comment: The ACOP relates to HSWA legislation.

Note: The specific legislation may not be relevant in some cases. For instance, most hoisting accidents can be adequately enforced by CQC on the basis of training and unsuitable equipment, rather than on the detail of LOLER.

Appendix 2: Incidents that fall to CQC

For example:

  1. The injury was to a patient or service user
    • A patient / service user fall from a window
    • Patient known to be allergic to penicillin was given penicillin and died as a result.
  2. There was minor injury to a worker but much  greater risk to the patient / service user from the same incident
    • A care worker suffers an over seven day injury whilst attempting to support a service user falling from a sling. The wrong sling was being used. This could have had potentially fatal consequences for the service user.

Appendix 3: Incidents where joint or co-ordinated investigations may be necessary

For example situations where:

  1. (i)There may be failings by duty-holders enforced by both HSE/LAs and CQC (e.g. commissioners1 and providers)
    • A disabled man with severe learning difficulties and epilepsy drowned in a bath at a residential care home. The assessment of his needs and risk management plan completed by the local authority made no mention of the risk of drowning during bathing.  In this case, the local authority (the commissioner) did not pass on the information to the residential care home. 
      Comment: CQC has no powers in relation to commissioners, therefore one for HSE.  CQC will still need to look at the home.
  2. Both workers and service users are put at risk by the same incident
    • The malfunction of an X ray machine due to poor maintenance leads to patients and workers being exposed to much greater than expected levels of radiation.
      Comment: Co-ordinated investigation

1 The role of the commissioner is to identify the care needs of a local population or group and to procure appropriate services to meet those needs. This usually requires a specification of the care required, identification of suitable providers, an assurance process to check that providers can meet the specification prior to engagement and a form of on-going monitoring to ensure that the specification continues to be met. Examples of commissioners include NHS England, local authorities and clinical commissioning groups.

Updated 2015-03-30