What is the HSE?
The Health and Safety Executive (the "HSE") is responsible for the regulation and enforcement of workplace health and safety.
The HSE will investigate the most serious work-related incidents, injuries or cases of ill-health to determine causes and identify what actions need to be taken to prevent recurrence. In doing so, inspectors will identify breaches of legislation, consider the appropriate method of enforcement, and where necessary, gather evidence to prosecute.
The HSE has powers to prosecute if it suspects that employers are in breach of any health and safety legislation and regulations.
What is the CQC?
The Care Quality Commission (the "CQC") is the independent regulator of health and adult social care in England.
New regulations came into force in April 2015, widening the CQC's powers to bring criminal prosecutions against care providers who are in breach of, or who fail to comply with, its Fundamental Standards (a number of which are related to health and safety issues). The CQC has become the lead inspection and enforcement body for safety and quality of treatment and care involving service users in receipt of health or adult social care service from a CQC registered provider. It should be noted, however, that the HSE may continue to prosecute CQC registered providers for health and safety matters involving workers, visitors and contractors.
Once the HSE/CQC is satisfied that it has obtained all of the necessary evidence during the course of any investigation, it will make the following enforcement decisions:
(a) Whether there is substantive evidence sufficient to support a prosecution; and, if so,
(b) Whether it is in the public interest to prosecute.
Both the HSE and the CQC set out prosecution criteria to ensure that there is coherence in how they determine which cases will be prosecuted
The HSE's Enforcement Guide (which is publicly available) states that factors indicating a prosecution include:
- where the breach of legislation resulted in the death of an individual;
- the gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the organisation;
- there has been a reckless disregard of health and safety requirements;
- there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance;
- work has been carried out without or in serious noncompliance with an appropriate licence or safety case;
- the organisation's standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk;
- there has been a failure to comply with an improvement or prohibition notice or there has been a repetition of a breach that was subject to a formal caution;
- false information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk;
- inspectors have been intentionally obstructed in the lawful course of their duties. 
The CQC Enforcement Policy notes that the CQC will consider prosecution where there is evidence to support the following:
- a service user has suffered avoidable harm or has been exposed to a significant risk of harm (physical or psychological in nature);
- services have been provided to individuals without informed consent;
- there has been a failure to notify and offer support to the relevant person following a notifiable safety incident;
- failure to comply with a requirement, Warning Notice or condition, suspension or cancellation of registration;
- there has been a repetition of a breach that was subject to a simple caution;
- false information has been supplied wilfully in relation to a matter that gives rise to significant health and safety risk;
- persons authorised by CQC to enter and inspect have been intentionally obstructed in the lawful course of their duties. 
Essentially, prosecution will be considered if it is appropriate to draw attention to the need for compliance with health and safety, or where breach of health and safety occurs despite a number of warnings.
Sentences against Public Authorities (namely the NHS and Local Authorities)
If a prosecution is pursued, the Sentencing Council has issued a definitive guideline for sentences. Strictly speaking it only directly applies to HSE prosecutions, being sentenced after 1 February 2016 (regardless of the date of the offence); however, the sentencing court is permitted to have regard to the guideline in CQC prosecutions as well.
In broad terms, this guideline recommends a sentencing range and, within that, a 'starting point' for the sentencing court to consider based on the:
- level of culpability;
- seriousness, and likelihood, of the harm risked (it is important to note here that it is not necessary for harm to have actually occurred, just for there to have been a risk of harm);
- offender's financial means.
Where the fine will fall on a public authority, the fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of its public services. The sentencing court will also consider any factors which indicate a reduction should be made, such as assistance to the prosecution and early guilty plea.
Recent cases demonstrate that in fining public authorities, the sentencing courts do appear to apply a reduction. However, there is no set percentage/quantity for that reduction and it is entirely at the discretion of the sentencing court.
The fines imposed tend to reflect the severity of the health and safety failings and the financial position of the organisation. This ensures that the fine imposed is just and fair.
Summary of Judgement
What this means for public authorities?
HSE v London Borough Council of Havering (Court of Appeal decision) (July 2016)
London Borough Council pleaded guilty breaching Regulations 4(2) and 4(3) of the Provision and Use of Work Equipment Regulations and received a £500,000 fine after a maintenance worker's leg was slashed by a cut-off saw.
The sentencing judge arrived at a starting point of £1.3million, reduced this to £750,000 for mitigating factors and by 1/3 for an early guilty plea.
The Council appealed this decision and argued that the sentencing judge should have reduced the fine by 50% because the sentencing guideline states that "penalties for public authorities should be substantially reduced if it will have a significant impact on the provision of its services."
The Council's argument was rejected by the Court of Appeal as the guideline was correctly applied and there was no authority to suggest that a "substantial reduction" meant 50%.
There is no fixed reduction rate for public authorities. The fine must be fair and proportionate to the offence. A public authority will not receive a set/fixed reduction simply because it is a public authority.
R v Shrewsbury and Telford NHS Trust (28 November 2017)
Shrewsbury and Telford NHS Trust pleaded guilty to breach of section 3(1) of the Health and Safety at Work etc Act 1974 and received a fine of £333,333 after five patients, aged between 72 and 92, sustained fatal injuries as result of falling while being cared for in hospitals run by the Trust.
The sentencing judge received and considered detailed evidence regarding the Trust's financial circumstances. The judge arrived at a starting point of £1million and reduced the fine by 1/3 for early guilty plea (£666,666). The judge stated that if the Trust were a commercial company the net fine would stay at £666,666. However, such a fine would have significantly impacted on future projects and the Trust would not have been able to control its recurrent deficits.
In light of this, the sentencing judge considered it appropriate to reduce the fine by a further 50%. The sentencing judge also allowed the Trust to pay prosecution costs in the sum of £130,000 within 18 months in view of its cash flow position.
This case emphasises that penalties for public authorities should be substantially reduced if it will have a significant impact on the provision of its services. The rate of reduction is entirely at the discretion of the court, and financial circumstances should be taken account of when imposing a fine on a public authority.
Whirlpool UK Appliances Ltd v R  EWCA Crim 2186 (Court of Appeal) (20 December 2017)
Whirlpool UK Appliances pleaded guilty to an offence under s.3(1) of the Health and Safety at Work Act 1974 and received a fine of £700,000 following the death of a worker working at height. On appeal, the Court of Appeal quashed the fine of £700,000 and substituted one of £300,000.
The rational of the Court of Appeal was that the sentencing judge failed to apply the sentencing guideline correctly, and in doing so did not account for the small-profit margin of the company. Whilst the company had an extremely large turnover, it only made a small profit, and therefore a fine of £700,000 was not considered reasonable.
The Court of Appeal made it clear that there should be no mechanistic extrapolation for fines for large companies (turnover of £50million +).
The fine should not be based on the turnover alone, but take account of the profit margin. This is important for public authorities because they do not make a profit.
R v Southern Health NHS Foundation Trust (26 March 2018)
Southern Health NHS Foundation Trust, pleaded guilty to two breaches of Section 3(1) of the Health and Safety at Work etc. Act 1974 and received a fine of £2million after a series of health and safety failings led to the death of two patients (a fine of £950,000 for one and £1,050,000 for the other).
The sentencing judge's starting point for this fine was just below £3,500,000. The Trust received a reduction of 1/3 for early guilty plea and a further reduction of 20% for being a public body. The sentencing judge considered this to be a just and proportionate outcome that marks the seriousness of the Trust's offending.
This case in particular highlights the seriousness of the fines being levied for health and safety failings and emphasises that the court has a duty to impose a fine that is proportionate to the seriousness of the offence.
These cases demonstrate that it is not possible to predict with any certainty what reduction any sentencing court will apply to a public authority.
- Proactively address compliance with health and safety legislation and requirements – this behaviour will count as powerful mitigation in any prosecution. The sentencing guideline specifically takes account of an offender's attitude towards health and safety and whether it is trying to address risk, even if it falls short on a specific issue.
- Ensure health and safety is on the radar of the organisation senior management; demonstrate a culture of strong health and safety from ward to Board.
- Make sure your organisation is fully co-operative with any investigation conducted by either the HSE or CQC; but seek legal advice early to ensure you do not inadvertently prejudice your position.
- Conduct all necessary investigations, and take appropriate action to prevent future incidents recurring in a timely fashion – document the changes evidencing audit and monitoring and check that the changes are actually being implemented and achieving their desired aims.