In a number of recent cases from across the UK, care home operators have been found liable for the deaths of residents who have sadly choked to death on solid foods, despite having been placed on 'soft diets'. These cases should remind all care home operators of the importance of carrying out, and effectively implementing, comprehensive risk assessments, in order to comply with their legal duties and minimise the risk of adverse incidents occurring within their facilities.

Legal Duties

Care home operators have a legal obligation to, so far as is reasonably practicable, ensure the safety of their residents. In practical terms, this means that operators have a responsibility to:

  • Carry out risk assessments in relation to their residents.
  • Effectively communicate with staff members so that they know about the risk assessments and the specific needs of each individual resident.
  • Ensure that staff members are appropriately trained and know how to implement the risk assessments.

In each of the recent cases where a resident has died due to choking, it was found that the care home operator in question failed to discharge at least one of the responsibilities outlined above. Some examples of such cases are discussed below.

Case Examples

  1. HC-One Limited was fined £640,000 in January 2022 after a resident at a care home in Clackmannanshire choked to death on a piece of jam doughnut given to her by staff. The resident suffered from dementia and had recently had a stroke. Risk assessments were carried out which confirmed that she was at high risk of choking, she was therefore placed on a diet of minced and moist food. The staff member who gave her the piece of jam doughnut had not been given training on modified diets or any information about the suitability of certain foods. Falkirk Sheriff Court therefore found that HC-One Limited failed to discharge their legal responsibilities to effectively communicate with staff and provide appropriate training.
  2. Care UK Community Partnerships Limited was fined £1.5 million in April 2018 after an elderly resident at a care home in West Sussex choked to death on large pieces of meat given to him by staff. The resident had recently been admitted to hospital, where a speech & language therapist determined that he should be put on a soft diet due to him being at risk of choking. Crawley Magistrates' Court found that the care operators did not keep accurate records and failed to take account of the advice given by the speech therapist when carrying out subsequent risk assessments. In one such risk assessment carried out by staff members at the home, following the resident's discharge from hospital, no choking risks were noted. One of the lead inspectors from the Care Quality Commission, which brought the prosecution against Care UK, stated "I hope the outcome of this prosecution reminds care providers of their duty to assess and manage all risks to ensure people are kept safe".
  3. A final example comes from a nursing home in Killyleagh Northern Ireland, where a resident choked to death on a pancake which was given to him by a self-employed activities manager. The gentleman was known to have difficulties swallowing and therefore to be at risk of choking. He was placed on a pureed diet as a result. The home's operator, M Care Limited, was fined £20,000 in September 2022 for failing to effectively communicate the resident's dietary requirements to the activities manager.

Comment

The key point for all care home operators to take away from the above, is that it is vitally important to ensure that adequate risk assessments are carried out in respect of each individual resident, and that staff members are aware of these risk assessments and their implications. Staff members also need to be given the appropriate training to be able to effectively implement these risk assessments so as to ensure that the specific needs of all individual residents are met. Regular auditing and reviewing those assessments to ensure they are still appropriate is also key. By taking these steps, care home operators will ensure compliance with their legal duties and reduce the likelihood of incidents like those discussed in this article occurring within their facilities.

Contributors

Lynn Livesey

Legal Director

Stephen Kirk

Trainee Solicitor