BUPA fined £3,000,000 plus costs of £151,482 by Ipswich Crown Court for Legionella death & related failures including lack of training - June 2018. 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.
If you manage, run or own a care home, residential home, nursing home or any healthcare related premises then you have a legal obligation under Regulation 12 of the Health & Social Care Act 2008 to have a Legionella Risk Assessment carried out and regularly reviewed as well as other control & prevention measures.
There are many myths and rumours about Legionella in the care environment, most are due to a misunderstanding of the requirements around Legionella, some of the confusion is even caused by the regulators themselves such as the CQC.
Legionella is potentially fatal, and the most susceptible groups of people are those that you would generally find in the healthcare environment. As a home manager, owner or employer you have a legal obligation to your residents, employees and anyone else effected by your undertaking which includes visitors.
The Health & Safety Executive 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 healthcare properties such as care homes. The increased performance criteria are designed to minimise the risk presented to the more susceptible groups of people found in the care environment.
Cheetham Hill Nursing Home in special measures after CQC find care breaches including Legionella failings - Jan 2018
Failure to meet the requirements of the ACOP L8 can lead to substantial fines, prosecution and even imprisonment.
So what do I need to do? The first step is simple, you need a Legionella Risk Assessment carried out by someone who is competent. Given the increased risk found in the healthcare environment we would advise that whoever carries out the risk assessment needs formal qualifications.
Why Formal Qualifications? You have a legal obligation under Health & Safety law to ensure that whoever carries out the work on your behalf is competent. By using someone with formal qualifications you can prove you have done everything possible to have the work carried out competently and if the worst happens you have given yourself some protection.
What Happens Next? Once the risk assessment is complete you will have a list of recommendations ranging from weekly flushing to annual water testing. Based on the recommendations you need to implement a written control scheme. The control scheme is nothing more than who does what, when, how often and their competency to do the task.
Dewsbury Care Home in special measure for Legionella failures and given 6 months to improve - Nov 2017
Competency? The ACOP L8 explains in some detail that those involved in the Control & Prevention of Legionella need to be "Technically Competent". From the very start of the risk assessment right through to the regular control & prevention tasks, if there is a failing in competency then the potential for a worst case scenario is increased, and someone could find themselves being prosecuted for a breach of health & safety.
Control & Prevention? Control & Prevention refers to carrying out & recording tasks to minimise (Prevent) legionella bacterial growth and control any levels of bacteria you may already have. In the healthcare environment, the minimum level of regular control & prevention tasks you would expect to see if the risk was being managed correctly are;
Flushing Infrequently Used Outlets.
Monthly Temperature Monitoring.
Quarterly Cleaning & Descale of "Spray" Outlets.
Annual Maintenance of TMV Valves.
Annual Legionella Testing.
Other "elaborate" control & prevention tasks maybe advised based on the risk assessment, these tasks may involve more regular reviews of the risk assessment.
Cleaning & Disinfection of Water Storage Tanks
An increased frequency of Legionella Testing.
Removing "Dead Legs" from the system.
Reading Council fined £100,000 by Reading Crown Court for Legionella failings plus costs of £20,000 - Jan 2016
How do the CQC cause 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" the CQC gives general advice taken from the ACOP L8 but the information that they give is taken out of context for healthcare providers. Nigel's surgery 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 has led many healthcare related premises to believe they can conduct the risk assessment themselves and not carry out any further control and prevention tasks.
However, further reading of the ACOP L8 2.152 to 2.168 is entitled "Special Consideration for Health Care and Care Homes". This special consideration explains 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 in "Nigel's Surgery".
What this effectively means is that regardless how low risk your systems are you cannot be low risk as a property because of the service users. So, in the healthcare environment "A simple risk assessment" is not suitable and even if the risks are "insignificant" or "being properly managed" you will always need to carry out at least the minimum control & prevention measures listed in the ACOP L8 if not all of them.
Ultimately you need to remember if there is a health & safety breach it is not the CQC that will find themselves in trouble, it's you. Even if the CQC guidance is misleading health & safety is your responsibility.
Trafford Care Home rated “inadequate” by CQC for the second time for putting residents at risk of catching Legionella - Sept 2017