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Care home prosecutions – Fire Authority prosecution powers

The new year has already seen an eye-watering fine for a care home – BUPA pleaded guilty to breaches of the Regulatory Reform (Fire safety) Order 2005 and were ordered to pay a fine and prosecution costs which together total just over £1 million. The prosecution related to events at a care home in March 2016 when a 69-year-old resident in a wheelchair died whilst smoking unsupervised in a smoking shelter. He had had paraffin-based emolument cream prescribed and should have had a smoking apron or supervision.

We have commented previously on the lesser-known risk of prosecution by fire authorities. Although it is well-known that the police and CQC (and to a lesser extent now, the Health and Safety Executive) are prosecution authorities, few are aware of the fact that fire authorities also have prosecution powers. Many are equally unaware of the stringent requirements of the fire safety legislation and that breaches can lead to a significant fine.

In the BUPA case the court adopted the approach to sentencing set out in the Sentencing Council guidelines for health and safety prosecutions. A similar approach has been adopted in many CQC prosecutions as well. As a result, the court considers specific factors including culpability, the seriousness of the harm that was at risk, the organisation’s approach to safety, and the value of its turnover.

Early advice when any regulatory prosecution is threatened is essential. An early plea of not guilty can attract a reduction of the fine by a third, and it is therefore important to approach any cases with the benefit of expert advice from as early as possible. Prosecution authorities will announce they are investigating, and may well interview under caution (or seek a similar written response). Advice on the approach to this is, we would suggest, essential.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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