In support of these legal requirements the HSE have issued an Approved Code of Practice for the Control of Legionella Bacteria commonly called ACOP L8 which gives guidance on how to comply with the law in relation to Legionella. The ACOP L8 and supporting technical guidance HSG 274 state enhanced performance criteria for health & care sites. The enhanced criteria are in proportion to the increased risk of Legionella infection that can be found at these sites. The Department of Health have also issued guidance in HTM 04-01 "Safe Water in Health Care Premises". This guidance document is often referred to as NHS Estates Guidance, it is a legal requirement for health & care sites and expands on the increased performance criteria of the ACOP L8.
A Legionella Risk Assessment is the first step to ensuring compliance with the HSE's ACOP L8 and is a legal requirement under health & safety law. Risk assessments need to be carried out by someone who is competent to determine the possible risk from Legionella bacteria. Our risk assessors are certified by Trust Mark who work with Trading Standards. Trust Mark is the only Government Endorsed Competent Person Scheme in the UK and operates under Government Licence from the Department of Business, Energy and Industrial Strategy.
Simply not having a risk assessment or failing to have one carried out competently could be seen by the courts as a breach of health & safety law. And, because of the increased risk and enhanced performance criteria required in health and care sites you will almost certainly need to use a specialist contractor like Water Wise. A risk assessment is only valid for up to 2 years which is the maximum allowed by the ACOP L8, after 2 years a new assessment needs to be carried out. During the 2 year period the assessment needs to be regularly reviewed along with the control & prevention measures to ensure the assessment is still up to date and the measures are being effective. For that reason, our risk assessments come with a
Why choose Water Wise to carry out your Legionella Services?
As well as being Trust Mark certified our risk assessors are also City & Guilds qualified and certified by Stroma.
Our service team also includes City & Guilds and NVQ Level 2 & 3 qualified plumbers who hold accreditation or membership with the CIPHE, Water Management Society, Engineering Council, Water Safe Registered (a requirement of NHS Estates) and are Water Industry Approved holding "Approved Contractor" status under the Water Supply (Water Fittings) Regulations 1999.
"The service you have provided has been more usful than the previous "in-depth" survey provided 2 years ago that was confusing and as such did not focus on the practical improvements we could and should make. Your report has allowed us a much better understanding and from this we will make the improvements you have suggested" - West Hallam Medical Centre
Legionella and the Care Quality Commission
Legionella assessment, control and prevention is a specialist area of work and you cannot rely on the CQC to ensure your compliance. In March 2019 the Swindon & Wiltshire Coroner's office wrote to the CQC after identifying that inspectors are not sufficiently trained to deal with water hygiene and instructed the CQC to reply with a written response detailing how they will rectify the education & training of inspectors. As a result, service providers can expect a much more in-depth and robust CQC inspection of water hygiene issues.
However, that does not mean the CQC will get it right, we still see a significant number of cases where CQC inspectors are misinterpreting the requirements of the ACOP L8 and HTM 04-01, failing to identify risks and giving providers poor ratings because of their lack of competence. The lack of competence can also increase costs for providers who in an effort to achieve CQC ratings carry out work based on the recommendations of inspectors which is not required, can be ineffective, increase the risk or even be against the official guidance.
We have even seen cases where CQC inspectors have fabricated information in their reports or failed to identify the risks altogether. It is important to remember that it is you who will fined or prosecuted for Legionella failures and not the CQC regardless of what they have written in their reports. There have been several cases where people have fallen ill or even died as a result of Legionella failures that have led to services providers been fined or prosecuted. In a number of these cases the CQC inspection prior to the outbreak rated the service provider as good or outstanding under safe but after the outbreak the service provider is rated as requires improvement or inadequate despite doing nothing different. In nearly all prosecution cases it was found that those involved were not suitably trained or competent.
Four Seasons fined £600,000 over legionnaires death.
“We accept that there were repeated failures to manage the implementation of procedures to safeguard people in the home, for which we sincerely apologise. The home had engaged a specialist environmental services contactor to maintain the water systems and keep them free from bacteria, but we should have carried out checks to establish their level of technical expertise".
CQC Inspection slams Enham Trust Care Homes.
The CQC revealed low levels of legionella bacteria had been detected in the water system of Elizabeth House in late 2017 and actions had not been taken by February 2018 from the first assessment. And inspectors discovered the service did not have “the right people, with the right qualifications and skills, in post to oversee this area of responsibility”.
BUPA fined £3,000,000 over legionnaires death & lack of training.
The court found those responsible had not been trained to the required standard.
Judge Emma Peters described that there were failings across the board from the care home operator and contractors. In particular, she cited the lack of training and understanding regarding the control of legionella among the line manager and staff.
Surgery facing closure after been rated inadequate.
A GP surgery in Forest Gate faces closure unless it improves the care offered to its patients within six months. The most recent legionella risk assessment was dated May 2016, “staff told us every action to ensure patient safety had been taken but this was not the case and actions in response to a previous legionella risk assessment dated 2011 were insufficient.”
In the case of BUPA and Four Seasons the risks that led to the death of both residents were not identified by the homes, contractors or inspectors. The care homes were prosecuted because the health & safety of staff, residents and visitors is their responsibility, despite being a regulatory body the CQC escaped any blame. After both deaths the CQC downgraded the homes "safe" ratings to requires improvement or inadequate. The ratings were changed despite the homes doing nothing different to when the CQC rated them as good.
Over the last few years, we have uncovered several instances where actions by CQC inspectors could have resulted in significant harm to others and put service providers at risk of fines and prosecution.
Example 1. We were called in by a medical practice group. The most recent CQC inspections reported that all sites within the group had Legionella risk assessments in place and that there was a member of staff within the group qualified to carry out the assessments. During our visits we were told that the group had never had any Legionella risk assessments carried out and there was no one within the business competent or qualified enough to carry out the assessments which is why we were called in. We showed the groups senior practice manager the CQC reports, they had no recollection of being asked for risk assessments.
We reported our concerns over the content of the reports to the CQC, we were then contacted directly by the inspector who claimed that CQC inspectors do not need to see the risk assessments, they only need ask if they exist and if the service provider says that they have them then they accept this at face value. We then put it to the inspector that the report stated they had "seen" the risk assessments, the inspector claims it was a mistake in the report! and could not offer any explanation as to why they recorded the group had a member of staff qualified to carry out the risk assessment. Somehow the CQC inspector had managed to rate the service as good partly based on claiming they had seen documents which did not exisit!
Example 2. During routine Legionella testing for one of our customers we found there had been some changes to the hot & cold water system. Thermostatic Mixing Valves had been fitted to all outlets including kitchen sinks on the advice of CQC inspectors who were concerned about the risk of scalding. The official guidelines do not require TMV valves to be fitted. All official guidance requires that a comparative assessment of the risk of scalding against the risk of infection is carried out. These comparative assessments normally conclude that TMV valves are required for baths, showers and hand washing but not for kitchen sinks especially when there is alternative hand washing provision within the kitchen.
The result of the routine testing identified that a significant amount of Legionella bacteria was present in part of the hot water system and was as a direct result of fitting TMV valves on the recommendation of CQC inspectors. The TMV valves were not required and went against the official guidance found in HTM 04-01. The inspector displayed a lack of competence in water hygiene issues and solely focused on what they believed was a scalding risk at outlets not designed for hand washing. The fitting, subsequent removal of the TMV valves and the disinfection of the system cost the service provider money. The recommendations of the CQC inspector put staff, residents and visitors at risk because of their lack of competence.
Example 3. We were called into a care home after a CQC inspector identified that the homes risk assessment lacked content and was not sufficient enough. The re-inspection was carried out after it was identified that a previous CQC inspector fabricated their reports. As a result, the CQC immediately rated the home as requires improvement without identifying any risks or issues other than the CQC inspectors fabricated report. During our inspection we found that the CQC inspector was correct, the risk assessment was not sufficient, the assessment was a "Group Wide Risk Assessment" covering multiple sites, as such the risk assessment did not identify issues and risks specific to the site.
As part of our inspection we checked the CQC reports for other sites within the care home group. CQC inspections at other sites had failed to identify the short comings in the group wide risk assessment, this led the care home group to believe that the measures in place were sufficient. So, in this case not only had a CQC inspector been found to have fabricated their reports other inspectors had failed to identify shortfalls in the same group wide risk assessment that the re-inspection identified as not being sufficient. It appears that inspectors carry out checks to varying standards based on the individuals understanding and not the standards set out in the official guidance which leaves staff, residents and visitors at risk.