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Record fine for fire safety breaches; the shape of things to come?

Private healthcare provider Bupa has been ordered to pay a purported record £1.04 million penalty (fine and costs combined) after admitting fire safety failings.

London Fire Brigade, prosecuting, said it was the "highest ever fine for fire safety breaches in the UK, [highlighting] the seriousness of Bupa's failure to protect a vulnerable resident in its care.”

The care home environment presents unique challenges, and is one in which the consequences of getting fire safety wrong are potentially catastrophic. Even in the absence of significant human cost, the financial costs associated with a breach of regulations can have a major impact on businesses. The reputational cost might be more serious still. In this article we consider the potential costs of failing to discharge fire safety duties; both within the care sector and beyond.

Background

In March 2016, 69-year-old wheelchair-bound Cedric Skyers sadly died when his cigarette set his clothes on fire in a garden shelter at Bupa Manley Court, Brockley. Mr Skyers was unsupervised when a care assistant saw the fire from a first-floor window and called 999. Staff attempted to put the fire out but sadly Mr Skyers died from his injuries. It was subsequently discovered that Mr Skyers' clothes had become flammable as a result of the emollient creams used to treat him.

Fire safety is regulated by the Regulatory Reform (Fire Safety) Order 2005 (the Order), which applies to almost all buildings, places and structures other than individual private homes. In terms of care homes, the Order places responsibilities on anyone with an involvement in fire safety such as registered managers, risk assessors and fire alarm technicians. However, the primary duties rest with the care provider as the ‘responsible person’ (although the definition of ‘responsible person’ is so wide that it could include others). Local Fire Services enforce the Order, carrying out inspections either after a fire or as part of routine checks.

The failings

In this case, investigators found that, whilst a smoking risk assessment had been carried out for Mr Skyers, Bupa had not assessed his use of emollient creams in that context. Additionally, apparent burn marks indicative of previous incidents were found on Mr Skyers' clothing after his death. Care home staff stated they had been unaware of this and, had they been so aware, would have completed more regular checks. Bupa pleaded guilty and is reported to have accepted it had failed to: ensure staff understood the risks from the use of emollient creams; warn residents using paraffin-based products not to smoke, or, require precautions to be taken; instruct staff not to leave a resident using paraffin-based products smoking unsupervised; and carry out a suitable and sufficient individual smoking risk assessment.

Providers should ensure that they assess the ability of residents to smoke safely, checking clothes for burn marks if necessary. Consideration should also be given to fire retardant clothing, smoking aprons and personal alarms. Bupa said it had introduced Comprehensive Risk Assessments for residents who smoke as well as regular staff training on paraffin based emollient creams and smoking aprons and supervision as a result.

Foreseeability

At first glance, and without background understanding, this tragic accident may look like an unlikely ‘freak’ incident; but that is far from the case. Whilst residents wishing to smoke present a number of challenges for care providers generally, Fire Services, the Care Quality Commission (CQC) and others have all issued guidance in recent years addressing the use of paraffin-based emollients for smoking residents.

The Medicines and Healthcare Products Regulatory Agency (MHRA) issued a safety alert as long ago as 2008, which was updated in 2016 and again in 2018. Such skins creams are common amongst care home residents and the guidance suggests that they can soak into clothes, bandages and bedding to create a fire hazard. Care home and domiciliary care providers have been advised to review their policies around the use of emollients and residents who smoke.

In 2017 the BBC investigated the issue and linked 37 deaths to the use of paraffin-based skin creams. The same year Anchor Trust were fined £210,000 following the death of a resident left to smoke a cigarette outside one of its care homes. In 2019, Wood House Care Home was sentenced to over £100,000 in fines and costs following the death of a resident who was set alight whilst smoking in her bedroom. Despite these cases, it appears more work still needs to be done to raise awareness of this issue; as recently as 2021 a coroner voiced concerns that “not enough is being done to ensure that patients, their families and carers are aware of the risks.”

The cost

Whilst this case is not necessarily illustrative in itself of the point (although it may have been a part of the sentencing court’s considerations generally), fire safety cases carry a significantly elevated level of risk due to the number of people potentially affected by an adverse event, particularly in establishments containing vulnerable people. It is not only the Fire Service that take an interest in care home fire safety. The CQC is taking an increasing interest in premises safety, including fire safety. Fire safety failings have played a part in homes being rated Inadequate and even formed part of the basis for cancelling some care providers’ CQC registrations.

Though fire safety cases were specifically excluded from the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Regulations Definitive Guideline (‘the Guideline’) when it was introduced in 2016, the Court of Appeal has determined that the Guideline provides a useful analogy and reference is often made to it in fire safety cases. Of particular note in this context is the requirement within the Guideline for the court to consider “whether the offence exposed a number... members of the public to the risk of harm. The greater the number of people, the greater the risk of harm”, and to consider adjusting the fine significantly upwards if so.

In addition, in March 2021, following the Fire Safety Consultation, the government announced proposed amendments to the Order that would see the introduction of unlimited fines for breaches of it. The impact of this in the context of fire safety enforcement could be as significant as the introduction of the Guideline, which has seen an unequivocal increase in fines for Health and Safety cases.

Conclusion

The tragic fire at Grenfell Tower in 2017 has put fire safety at the forefront of the public agenda, both for those responsible for implementing, and those enforcing, the legislation. The size of the fine in this case sets no legal precedent but is an important reminder of the consequences of failing to discharge duties, even beyond the care home sector, as the prosecuting fire service was (understandably) keen to emphasise; “If there can be anything constructive to come from this, we hope that it will be that anyone who has a legal responsibility for fire safety in a building – whether as a landlord, property manager, care home provider or any other setting – takes note and makes sure they are complying with the law.”

It is clear all businesses need to ensure fire safety is appropriately prioritised, as the cost of failing to do so is set to increase for all those caught by the Order.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2022.

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