HSE to commence spot checks of care homes
The HSE has explained that its programme of spot checks has been extended to include care homes, ‘a spot check is a phone call to review the measures being taken to minimise spread of coronavirus in the care home and to protect workers whilst they are caring for residents’. The purpose of the call is to assess the home’s knowledge, awareness and implementation of the suite of guidance produced to enable them to operate safely.
Memorandum of Understanding (Updated February 2018)
Providers may feel some concern regarding the possibility of having to undertake further administration in order to satisfy yet another body as regards Covid risk. The MOU outlines the respective responsibilities of the Care Quality Commission, Health & Safety Executive (HSE) and local authorities (LAs) in England when dealing with health and safety incidents in the health and adult social care sectors:
- The CQC remains the lead inspection and enforcement body under the Health and Social Care Act 2008 for safety and quality of treatment and care matters involving patients and service users in receipt of a health or adult social care service from a provider registered with CQC.
- Health & Safety Executive / Local Authorities are the lead inspection and enforcement bodies for health and safety matters involving workers, visitors and contractors, irrespective of registration.
As explained in Annex A factors tending towards CQC taking the lead, include incidents which may have exposed staff to harm, but the principal concern is the greater risk of harm to patients / service users. The closest example to the case at hand in Annex A concerns Legionnaires disease which could be dealt with by the HSE in circumstances where ‘societal health risks’ are introduced.
Providers should also note that the MOU obliges the bodies to co-operate effectively to enable and assist each other to carry out their responsibilities and functions, and to maintain effective working arrangements for that purpose. As the HSE has confirmed, the outcomes of the spot checks will be shared with the relevant regulator.
Providers who have been ‘inspected’ will not be contacted by HSE
HSE have confirmed that providers who have been inspected by the CQC will not be contacted to avoid duplication of effort. What is not clear is whether this refers to full inspection or Infection Prevention and Control (‘IPC’) inspections. In CQC’s recent webinar, ‘Now, Next, Future’ (20 October 2020) Kate Terroni, Chief Inspector of Adult Social Care, confirmed that 1,203 inspections have taken place between 1 April and 13 October 2020. The CQC’s routine inspection regime remains suspended, inspections are being prioritised according to risk and IPC inspections are ongoing (the intention is to complete 500 more of these by the end of November 2020). Details regarding the transitional regulatory approach can be found in earlier briefing.
As providers may be aware, the IPC inspection is said to be dual focussed; undertaken to collate information regarding good practice which can be shared amongst providers and to respond to concerns regarding risks. HSE guidance regarding spot checks suggests that inspectors will give advice to help manage risk, whilst this may sound like an Emergency Support Framework (ESF) conversation the guidance also notes that where risks are not managed HSE can take enforcement action, which includes prosecution.
- Managing Risk and Risk Assessment at Work
Reasonable steps must be taken to protect workers and others from coronavirus in accordance with the Health and Safety at Work legislation. Employers must conduct a risk assessment as follows:
- identify what work activity or situations might cause transmission of the virus
- think about who could be at risk
- decide how likely it is that someone could be exposed
- act to remove the activity or situation, or if this isn’t possible, control the risk
The HSE have produced useful guidance, ‘what to include in your Covid risk assessment’, which can be accessed here. Whilst this is not specific to care homes, it does provide an insight as to the range of matters the HSE will expect to have been considered as part of the risk assessment process.
Providers should ensure that they have taken appropriate action in response to the assessed risks and can evidence the steps taken. Providers may also need to revise local risk assessments and associated actions in accordance with the home’s status as regards the Tier system in operation at present.
- IPC Questions
Providers should also ensure they have prepared answers to address each of the matters set out in CQC’s IPC guidance, which can be accessed here .
CQC inspectors use the questions and prompts below to assess the extent to which staff and people living in care homes are protected by infection prevention and control (IPC) – in accordance with key line of enquiry S5.
- Are all types of visitors prevented from catching and spreading infection?
- Are shielding and social distancing complied with?
- Are people admitted into the service safely?
- Does the service use PPE effectively to safeguard staff and people using services?
- Is there adequate access and take up of testing for staff and people using services?
- Does the layout of premises, use of space and hygiene practice promote safety?
- Do staff training, practices and deployment show the service can prevent and/or manage outbreaks?
- Is IPC policy up-to-date and implemented effectively to prevent and control infection?
The CQC have provided details for ‘what good looks like’ in respect of each of these questions. Related Covid guidance and other relevant resources can be accessed via links under each of the questions. As can be seen in the CQC’s revised Closed Culture guidance for inspectors, providers must ensure that restrictions are proportionate and are reviewed regularly as they may otherwise generate concerns from a human rights perspective
In addition there are a series of eight mandatory questions:
- Does the service have sufficient and adequate supply of PPE that meets current demand and foreseen outbreaks?
- Are staff using PPE correctly and in accordance with current guidance?
- Has the service received external PPE training during the pandemic sourced from a Mutual Aid trainer or of similar equivalence?
- Does the service know where to go for advice should there be an outbreak – which authorities and what their role and responsibilities are?
- Is the service participating in the testing program that is currently provided for residents and staff members?
- Do staff in the service understand the principles of isolation, cohorting and zoning appropriately?
- Has the service implemented isolation, cohorting and zoning appropriately?
- Has the service adequately taken measures to protect clinically vulnerable groups and those at higher risk because of their protected characteristics (BAME, physical and learning disabilities)?
It is likely that many of these matters are reflected in policy and protocols which have been cascaded to staff either via specific training sessions or via clinical governance meetings. It would be helpful to have all agendas, sign in sheets, minutes of meetings where these matters have been agreed upon or discussed readily accessible so that they can be referenced as required. From a governance perspective, it would also be sensible for providers to have a mechanism in place for checking staff understanding of the policies in place and for assessing the effectiveness of the measures implemented more generally.
 HSE is responsible for enforcing health and safety at all healthcare premises as well as care homes with nursing, and public social care providers, whilst LAs are responsible for other residential care homes.
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.