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March 27, 2013

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More resource to help HSE prosecute serious health-care failings

In the wake of the patient-safety scandal at Mid Staffordshire NHS Foundation Trust, the Government has promised to ensure the HSE has suitable resource to use its full prosecution powers in incidents where criminally negligent practice in hospitals is identified.

The pledge was made as part of the Government’s initial response to the report of Robert Francis QC into the failings at the Trust, which are believed to have resulted in hundreds of patient deaths between 2005 and 2009.

The report, which was published last month, concluded that the Trust had put corporate self-interest and cost control ahead of patient safety. It also identified the existence of a “regulatory gap” between the HSE and the primary-care regulator, the Care Quality Commission (formerly the Healthcare Commission).

But rather than give the CQC powers to prosecute offences under the 1974 Act, and despite Robert Francis’ assertion that the HSE is “clearly not the right organisation to be focusing on health care”, the Government has decided the Executive has an important role.

In its initial response to the report, it confirms the creation of a chief inspector of hospitals, appointed by the CQC, who will be responsible for referring matters involving a potential breach of health and safety requirements to the HSE. The Government adds: “The Department of Health will work with the Department for Work and Pensions and the HSE to ensure that the Executive has the necessary capacity to act.”

The HSE, which is under edict to make 35-per-cent budget cuts by 2014/15, intends to withdraw from proactive inspections in certain sectors.

In relation to health and social care, the HSE explains: “Due to the nature of the risks, and the size, complexity and responsibilities of many organisations across the sector, there is a need for HSE to target its interventions towards collaborative working. At the same time, HSE needs to maintain front-line investigative and inspection skills to respond to significant health and safety failures across the sector.”

The CQC’s current powers to prosecute in relation to a breach of health-care regulatory standards are limited to cases where it has served a warning notice, which has not been complied with. Only the HSE has the power to prosecute for an offence under the HSWA 1974, and the Francis report suggested that the reasoning behind this policy may be the feeling that it is “generally undesirable to bring the criminal law into the clinical arena, as it inhibits openness and improvement”.

The report explained: “For understandable reasons, given the breadth of responsibilities, its lack of specialist expertise in health-care issues, and the existence of regulators apparently better equipped to make judgements on them, the HSE has been reluctant to take a less restrictive approach to health-care cases.”

However, it also concluded that the current approach of the HSE in such cases, and its focus on the effect of an enforcement decision on resources, “has the appearance of looking for reasons for not taking action, rather than starting from a consideration of what is in the public interest”.

HSE principal inspector Clive Brookes told the public inquiry: “All the families who ask for action, ask for action because they have had loved ones die, or perhaps seriously injured. But the public interest is not just what they want, the public interest is what’s good for the patients now who are in the hospital. Am I going to upset things so much that the people who are there now are going to be injured or hurt?”

The HSE is yet to launch any prosecution proceedings in relation to the failings at Mid Staffordshire; however, it is still considering whether to launch a formal investigation over the death of Gillian Astbury, a patient at Stafford Hospital.

The Francis report said that whatever is decided in this specific case, “the regulatory gap needs to be closed as a matter of urgency”. It added: “There will be cases, even where they involve clinical judgement, that expose serious system failings, and grossly incompetent management and procedures, not confined to issues of defective equipment.”

An HSE spokesperson told SHP: “HSE welcomes the Government’s proposal to introduce new, clear arrangements for potential health and safety offences to be investigated in health-care services. €

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