If you manage, run or own health or care related premises then you have a legal obligation under health & safety law and regulation 12 of the Health & Social Care Act to have a valid and upto date Legionella risk assessment in place as well as carrying out other measures.
The HSE have issued an Approved Code of Practice for the Control of Legionella Bacteria commonly called ACOP L8, this is in effect a legal document. The ACOP L8 gives guidance on how to comply with the law in relation to Legionella, it states increased performance criteria for health & care related properties. Failure to meet the requirements of the ACOP L8 can lead to substantial fines, prosecution and even imprisonment. The Department of Health have also issued HTM04-01 "Safe Water in Health Care Premises". This guidance document expands on the increased performance requirements of the ACOP L8 for the control & prevention of Legionella bacteria in health & care environments.
Legionella & water hygiene can impact on inspections by regulatory bodies such as the Care Quality Commission but the varying requirements of the CQC as well as poorly trained inspectors often causes confusion. 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 issues. As a result, service providers can expect a much more in-depth and robust CQC inspection of water hygiene issues including Legionella.
What Do I Need To Do?
The first step is to have a Legionella risk assessment carried out. The ACOP L8 explains in some detail that those who carry out risk assessments need to be "Technically Competent". The risk assessment defines what testing, control & prevention tasks may be required. If your risk assessment is not carried out correctly you can put lives at risk as well as waste money. It is also reasonable to assume that the recommended tasks may also be incorrect and ineffective.
It is for the Duty Holder to assess and decide who is competent to carry out the required tasks and that includes the hiring of specialist contractors. In a high-risk environments such as health care or a care home you will need to be able to demonstrate a much higher level of competence and will nearly always require the services of a specialist contractor to meet the requirements of the HSE's ACOP L8.
In recent years we have seen several service providers prosecuted by local authorities, the Health & Safety Executive and the CQC resulting in fines ranging from tens of thousands to several million pounds. There has also been a significant number of service providers who have been rated inadequate or fallen into special measures because of water hygiene and Legionella related issues. In nearly all 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.
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.”
The Care Quality Commission Confusion
Under "Safe" the CQC are to inspect a service to ensure it is safe for users. The "Safe" part of the inspection should include the Legionella risk assessment. The guidance that the CQC gives to its inspectors and providers is misleading as it gives the impression providers may not need to carry out any control and prevention measures. For example, in section 27 of "Nigel's Surgery" (part of the online advice the CQC gives to providers) it states "A simple risk assessment may show that the risks are low and being properly managed. In many cases the risk assessment will lead the practice to conclude that the risks are insignificant and are being properly managed to comply with the law. In these instances, the assessment is complete, and no further action is required." This is general advice taken from the HSE's ACOP L8 and has led many healthcare related premises to not carry out the correct level of control and prevention tasks.
Sections 2.152 to 2.168 of the ACOP L8 is entitled "Special Consideration for Health Care and Care Homes". These sections explain that you need to consider the people using the service and implement most if not all the guidance given in the ACOP L8. A vastly different recommendation in comparison to the advice given by the CQC. These measures include but are not limited to the flushing of outlets, regular temperature monitoring of the system (not just outlets), maintenance of TMV valves and much more.
The risk of Legionella in a health & care environment can never be "low" if you assess the risk correctly and take service users into account as the ACOP L8 requires. If the risk cannot be low, then a "simple" risk assessment is not suitable, and the level of competence needed to assess the risk is high.
The CQC have rated us as "Safe" so must be happy with what we are doing!
In June 2018 BUPA was fined £3,000,000 plus costs of £151,482 by Ipswich Crown Court for a Legionella related death & other failures including lack of training. BUPA Care Homes (BNH) Ltd pleaded to breaching Section 3 (1) of the Health and Safety at Work Act 1974. The investigation found that for more than a year, during which time major refurbishment works were carried out, BUPA Care Homes (BNH) Ltd failed to implement the necessary control and monitoring measures required to safely manage their hot and cold-water system. It also found "failings across the board” and that those responsible for overseeing legionella had a lack of "training and understanding". The court noted that those involved in taking crucial water temperature measurements had not been trained to the required standard.
What is interesting here is that the CQC inspection prior to the Legionella related death rated the home as meeting the required standards for "Care and welfare for people who use services " and "Cleanliness and infection control". It was only after the death did the CQC rate the home as "Requires Improvement" under "Safe". Unfortunately, this is not the only incident of this type we have seen, and no blame has attached itself to the CQC in these cases. We have even seen cases where CQC inspectors have recorded they have seen Legionella risk assessments when none existed. But hopefully that is starting to change.
On the 01/04/2019 the Wiltshire & Swindon coroners court sent an official notice to the CQC following an inquest into a Legionella related death at the Fordingbridge Care Home in November 2017. In March 2017 the home was rated as "Good" with Legionella not even mentioned in the report. The notice stated "Care homes and other healthcare premises are regularly inspected by the CQC. In recent years the inspection regime has included a duty on inspectors to check on water safety. Expert evidence at the inquest suggested that inspectors lacked training to help them identify risks relating to potential legionella infection."
The coroner also gave notice, "In my opinion action should be taken to prevent future deaths and I believe your respective organisations have the power to take such action. Specifically, consideration might be given towards providing relevant education and training." The coroner has also instructed the CQC to respond to him in writing "Your response must contain details of action taken or proposed to be taken, setting out the timetable for action. Otherwise you must explain why no action is proposed."