If you manage, run or own a healthcare or care related premises then you have a legal obligation under Health & Safety Law & Regulation 12 of the Health & Social Care Act 2008 to have a valid and upto date Legionella Risk Assessment in place as well as carrying out other control and prevention measures.
Doctors, Healthcare Centres, Medical Centres, GP Practices, Hospitals, Hospices, Dentists, Dental Surgeries, Care Homes, Residential Homes and Nursing Homes are just some of the type of regulated activities that need to consider Legionella. Unfortunately there has been alot of confusion caused around the requirements of the ACOP L8, some of the confusion is even caused by the regulators themselves such as the CQC.
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. The increased performance criteria is designed to minimise the risk presented to the more susceptible groups of people found in the these environments. Failure to meet the requirements of the ACOP L8 can lead to substantial fines, prosecution and even imprisonment.
What Do I Need To Do?
The first step is to have a Legionella Risk Assessment be carried out. The ACOP L8 explains in some detail that those who carry out risk assessments need to be "Technically Competent". If your risk assessment is not caried out correctly you can put lives at risk as well as waste money. The risk assessment defines what Legionella Testing, Control & Prevention work may be required. If the risk assessment is not carried out correctly then it is reasonable to assume that the work the assessment recommends may also be incorrect and ineffective.
It is for the Duty Holder to assess and decide who is competent to carry out tasks and that includes the hiring of specialist contractors. If the risk assessment and resulting control and prevention tasks are not carried out competely you may put lives at risk. Carrying out the wrong control & prevention tasks can also be costly.
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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" 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".
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. 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.
The most common problem we find is the confusion between the requirements of the CQC's Safe Hand Washing Guidelines and the temperature monitoring requirements of the HSE's ACOP L8. We often find providers recording temperatures as required by the CQC, but this is only a fraction of the work required under the ACOP L8.