Legal: NHS Trusts & CCGs face criminal prosecution and unlimited fines for inappropriate discharges and placements. Individual staff face up to two years’ imprisonment

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Below is an excellent and informative bulletin on the subject of the legal obligations of NHS trusts regarding discharges and placements.  It was prepared by the former solicitors of Norfolk & Suffolk NHS Foundation Trust (NSFT), Mills & Reeve, in July 2012.  The bulletin was widely circulated within NSFT.  Let’s hope that NSFT’s new in-house lawyer, Maeve Heaney, and her boss, NSFT Secretary, Robert Nesbitt, have copies.  They need to give a copy to NSFT’s new Chief Executive, Michael Scott, and the CCGs too.

An Approved Mental Health Professional (AMHP) and campaign supporter writes:

“Can the Trust put hand on heart and tell us that its current discharges are fully risk assessed?  Are all the patients placed at Hostels assessed as being safe to be there?  I don’t think so.  Are all the patients in out of area hospitals fully risk assessed before discharge?  Is all the necessary information gathered together?  Are CPA meetings convened?  Are Section 117 reviews held?  What about patients placed in decant beds?

The daily pressure on clinicians to discharge patients at all costs because of the pressure on beds must be skewing assessments.  My impression of Mental Health Act assessments lately is that there is a tendency to avoid admission and refer people for Home Treatment, even in cases where the crisis team has previously decided that home treatment is not a safe option.  One of the human reasons for this is that there is often no local bed available and to admit a patient hundreds of miles from Norfolk will be a massive, complicated task, and will take an enormous amount of time and effort, with the AMHP working long into the night.  Who would not subconsciously avoid such a scenario, and the consequential upset to the patient and their family, if they could?

The Trust has a responsibility not to place its staff in such a vulnerable position.  Unfortunately, it is often individuals who are scapegoated in the Coroner’s court or in public inquiries, as we have recently seen.  Mills and Reeves has shown that NHS Trusts have been convicted of criminal charges under Health and Safety legislation.  NSFT needs to change its bed commissioning policies before it happens here.”

We’ve only recently highlighted the story of Mr Sale who went missing overnight from the Coach House care home in Hemsby.

You can read the full briefing note below:


What are the implications for NHS commissioners and providers after trust is convicted over decision to place patient who stabbed a care worker to death?

Hertfordshire Partnership NHS Trust has been convicted of a criminal offence and faces a bill of nearly £500,000 after a patient stabbed a care home worker to death.  Both the trust, which according to the judge in the case “contributed to” the worker’s death, and the care home owner were convicted of Health & Safety Act offences due to the lack of adequate risk assessments.

The facts

In August 2007, Stephen Flatt, a mental health patient living at a care home, attacked two staff members with a knife killing one and injuring the other.  In 2009, he was ordered to be detained indefinitely in secure mental health accommodation.

The judge at Mr Flatt’s criminal trial was highly critical of the decision to place him at the care home, Abacus House in Dunstable as it was “plainly wholly unsuitable premises”. Investigations commenced into the actions of Hertfordshire Partnership NHS Foundation Trust, which had placed Mr Flatt at the home, and into the unit’s owner, Mr Chelvanayagam Menna.

Following those investigations, the Trust and the owner were charged with criminal offences under the Health & Safety at Work Act etc 1974. After a lengthy Crown Court trial, both were convicted by a jury. The Trust was fined £150,000 and ordered to pay prosecution costs of £326,346. Mr Menna was fined £75,000 and required to pay costs of £338,996.

The law

The Trust was charged two offences under section 33 of the Health & Safety at work etc Act 1974. The first alleged a breach of Health & Safety Regulations, in that the Trust failed to make a suitable assessment of the risks that Mr Flatt posed to staff or other residents of Abacus House. The second alleged a breach of the Trust’s duty under section 3(1) of the Act.  This states:

  1. lt shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their healthy or safety

In other words, when the Trust chose to place Mr Flatt at Abacus House, it did not do so in a way that made sure, as far as was reasonably practicable, that the staff and other residents were not exposed to risks to their health and safety. A suitable and sufficient risk assessment would have enabled them to do that.

Where the Trust went wrong

The basis on which the Trust was prosecuted was that it had failed properly to assess the risk of placing Mr Flatt at Abacus House, a unit where it had never before placed a patient.  The Trust relied on assurances provided by Mr Manna that his home could deal with Mr Flatt.  The judge stated that Mr Menna was “not candid” with the Trust, but it was not sufficient for the Trust simply to rely on what it was told by the care home provider.  Had the Trust carried out a proper risk assessment, the case reports suggest that Mr Flatt would never have been sent to the home.  By not carrying out an adequate risk assessment, the Trust failed to take reasonably practicable steps to minimise risk.

The lessons for commissioners and providers

Crucially, the position in this case would logically have been the same if Mr Flatt had harmed himself rather than someone else and the investigations had followed an inquest rather than a murder trial. If this case is reflective of the HSE’s ongoing approach, mental health trusts could face criminal prosecution following suicides in the community of formerly detained patients, if they cannot demonstrate that risk was properly assessed, both in deciding to discharge the patient and in providing for his or her aftercare.

The implications of this case go further.  They impact upon Trusts which are themselves accommodating patients, whether in acute hospitals or other units.  Commissioners and providers need to be alert to the risk of prosecution if they locate any patient in an unsuitable location, who goes on to harm themselves or someone else. Even before you discharge a patient, they may pose a risk to your staff, to other patients, to visitors to your facilities – in fact to anyone who comes into contact with a patient because of where you have chosen to place them.

The Trust in this case was effectively acting as commissioner.  If a commissioner is dealing with a new provider, it needs proper assurance that the provider is safe.  If a commissioner is aware that a provider is failing or has been the subject matter of criticism or complaint, it needs to consider carefully what action to take. If it does nothing, and a serious incident takes place, the HSE may come knocking at the door of the commissioner as well as the provider.

Both financially and reputationally, the impact on a public body of a conviction of this type can be serious and if such an offence happened today, the financial implications would be even worse.

Tougher penalties for Health & Safety offences were introduced in 2009. They were not back-dated, so the offences in this case, which occurred in 2007, attracted the older, lower penalties. The courts now have the power to impose unlimited fines and to impose up to two years’ imprisonment if individuals are found to have been culpable.

CQC’s role

The relevant regulators at the time of the death of Kathleen Bainbridge in 2007 were the Healthcare Commission and the Commission for Social Care Inspection (CSCI).  lf the same events happened today, the Care Quality Commission (CQC) would be the responsible regulator for both organisations.  Although it is impossible to predict CQC’s likely reaction to this set of facts, it would have its full range of civil and criminal powers available.  The CQC still has very limited power with respect to regulation of the NHS’s commissioning function.  Regulations remain drafted firmly on the basis of a provider’s responsibility for the standard of care it provides – something that can cause tension when someone else determines what they will be paid for that care.  How commissioners are regulated in the future may be an issue that Robert Francis considers in his long awaited report into Mid Staffordshire NHS Foundation Trust.

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