BUPA ordered to pay over £1m for fire safety failings following death of care home resident

A care home business, run by private health care provider BUPA, has been fined £1.04m after a resident died in a fire while smoking at one of its care homes.

BUPA Care Services (ANS) Ltd was fined £937,500 for fire safety failings and ordered to pay £104,000 prosecution costs at Southwark Crown Court on 5 January 2021.

The London Fire Brigade brought the prosecution against BUPA under the Regulatory Reform (Fire Safety) Order 2015 after it was called to the blaze at the Manley Court care home in Brockley in March 2016.

Cedric Skyers, a 69-year-old wheelchair user and former resident of the home, died in a fire whilst smoking un-supervised in a shelter in the garden of the premises. A care assistant saw the fire from a first-floor window and called 999 before staff attempted to put the fire out, but Mr Sykes sadly died from his injuries.

A subsequent investigation found that although a smoking risk assessment had been carried out for Mr Skyers, it did not assess his use of emollient creams, which can be flammable if allowed to build up on skin, clothes or bedding.

Apparent burn marks indicating previous incidents were also found on Mr Skyers' clothing after his death, something care home staff claimed they had been unaware of. They said if they had known, they would have ensured more regular checks were made when he was smoking.

The Brigade brought the case as there had been a failure to comply with fire safety duties which placed Mr Skyers and other residents at risk of death or serious injury in case of fire.

BUPA pleaded guilty to contravening Article 11 (1) which relates to the management of fire safety measures.

Specifically, it accepted that 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 such as the use of smock or apron

• Instruct staff not to leave a resident using paraffin-based products smoking unsupervised

• Carry out an individual smoking risk assessment of the residents as normal with the control measures in place.

The Brigade's Assistant Commissioner for Fire Safety, Paul Jennings, said: "This case is a tragic example of what the devastating consequences of failure to comply with fire safety regulations can be.

"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 it's a landlord, a property manager, care home provider or any other setting, take notes and makes sure they are complying with the law."

Forbes Comment

The Fire Service have been highlighting the fire risks associated with emollient cream (usually containing liquid paraffin) usage on service users for many years. Fire safety advice also highlights that non-paraffin based emollients pose the same fire risk as those with paraffin. There have been a number of fatal incidents which have highlighted the cause of deaths at inquest hearings as a result of the use of emollient cream being on clothing, bedding or furniture and being a contributory factor when introduced to a heat source. We have represented clients when similar issues have arisen. One Fire Service reports nationally that there have been at least 56 deaths associated with emollient skin products within the last 10 years in England.

The CQC updated its guidance to organisations that fall within their regulations in September 2020 on known risk factors associated with the unsafe use of emollient creams and fire risk. The guidance reminded healthcare professionals of an update from the Medicines and Healthcare Products Regulatory Agency (MHRA) issued in July 2020 that advises users of emollient creams to:

• avoid smoking

• change and wash clothes and bedding frequently

• keep cream off furniture

• tell relatives and carers about your treatment

• tell your healthcare professional if you usually smoke

There are free resources available from Safe use of emollient skin creams to treat dry skin conditions - GOV.UK (www.gov.uk) including leaflets issued by the MHRA in partnership with the National Fire Chiefs Council to support the safe use of emollients in health and social care settings.

This latest prosecution highlights the importance of 'service user specific' risk assessments which identify material risks in particular cases. In this case, it seems that the potential risk arising from the activity of smoking when combined with the close proximity of a flammable substance had been overlooked. Any risk assessment must be reviewed and updated on a regular basis.

The level of fine reflects the turnover and size of the company, the high culpability and seriousness of harm risked and the high likelihood of harm. Bupa Care in 2018 received a £3m fine following a death arising from a Legionnaires disease outbreak and a £400,000 fine in 2016 when a service user tragically fell from her bed.