Skip to main content
Marsh logo

Article

Navigating claims and regulatory risks in health and social care: Strategies to strengthen your defence

This article explores navigating claims and regulatory risks in the health and social care sector.
Person's name and title

By Sarah Triggs , 

Health and Social Care Leader, Marsh McLennan UK Industries

17/12/2025 · 6 minute read

“How are we paying for this one? We completed the care plan and provided training, yet it appears our employee wasn’t following the infection control protocols or using the PPE supplied to them.”

This frustration is one of the most common we hear from our health and social care clients.   The legal landscape is rapidly evolving, placing increasing personal liability risks on individuals. Meanwhile, low-paid caregivers face immense pressures in this liability-driven, people-focused sector, where every decision can have serious consequences. Importantly, employer responsibility is shifting to encompass psychosocial risks, recognising that mental health and well-being are critical components of workplace safety and must be actively managed to reduce claims and regulatory exposure.

Defending claims in this sector is uniquely challenging due to many factors, ranging from the complexity of medical evidence and the sensitivity of safeguarding issues to the scrutiny of the regulators and the public. Below, we shed light on why some claims cannot be defended and outline strategies to enhance your defence.

1. Documentation: The foundation of defence

When stress-testing a client’s ability to defend claims, we always start with the basics: legally required policies and procedures designed to keep employees, patients, and visitors safe.    The one golden rule in any line of defence is this — if it’s not written down, then it cannot be used in your defence.

In health and social care, written documentation may include:

  • A health and safety (H&S) policy tailored to care settings.
  • Care plans and medical records.
  • Employee records, including training and evidence of DBS checks.
  • Risk assessments specific to clinical and non-clinical activities, including psychosocial risk assessments.
  • Safe systems of work or method statements for care delivery.
  • Procurement and contractor management policies.
  • Cleaning, infection control, and inspection regimes.
  • Mental health and well-being policies reflecting psychosocial risk management.

Common pitfalls that undermine defences

  • Non-existent or incomplete documentation: Some organisations still lack key documents, including those addressing psychosocial risks. Insurers are unlikely to support defences without comprehensive documentation in these areas.
  • Generic or tick-box documents: Risk assessments must be specific to the site, role, and risk, including tailored psychosocial risk assessments. Generic documents invite claims that the organisation is not taking safety seriously.
  • Unsuitable documents: Risk assessments and policies must be developed with input from frontline workers to ensure they reflect real-world risks and controls, including mental health considerations.
  • Poor retention: Claims can be brought years, or even decades, after an incident — especially in cases involving abuse or disease. Without properly retained evidence, courts may assume that relevant documents never existed.
  • Lack of evidence of enforcement: Simply having policies is not enough; organisations must prove they are enforced. This includes documenting safety conversations, disciplinary actions, compliance monitoring, and well-being check-ins.

2. Training: Demonstrating competence and understanding

In health and social care, training is critical — not only for compliance but also to ensure patient safety and staff well-being. To defend claims, you must prove:

  • Content: Training must be relevant and adequate for the tasks and risks involved, including areas such as mental health awareness and stress management.
  • Attendance: Records of who attended — whether online or in-person — are essential.
  • Understanding: Claimants often argue that training was a tick-box exercise. Simple assessments or competency checks can demonstrate genuine understanding, especially for on-the-job training and psychosocial risk awareness.

3. Incident investigations: Objectivity and thoroughness matter

Even with good documentation and training, poorly managed incident investigations can unravel your defence. To ensure investigations are effective:

  • Always comprehensively check any documentation requested by the regulators in advance and seek legal advice if there is any uncertainty.
  • Avoid admitting facts in a way that undermines your position; record incidents objectively.
  • Identify a broad range of witnesses, including those who can provide contextual information.
  • Conduct formal interviews rather than relying on self-written statements.
  • Collect objective evidence such as photographs, CCTV footage, and environmental data.
  • Perform root cause analysis carefully — avoid conclusions that directly blame organisational failings without context.
  • Ensure corrective actions are meaningful and documented with context, rather than generic directives like “retrain staff.”
  • Include psychosocial factors in investigations where relevant, such as the impact of workplace stress or bullying on the incidents.

Our incident investigation analysis and training services can help improve your team’s investigative quality and strengthen your defence.

4. Managing psychosocial risks: A growing employer responsibility

The health and social care sector faces growing psychosocial risks — stress, burnout, and mental health challenges — that impact both staff and service users. Employers are increasingly held accountable for managing these risks as part of their duty of care.

  • The 2023 NHS annual survey shows that 42% of NHS staff report work-related stress, with mental health-related sickness absence rising steadily.
  • Effective risk management includes regular psychosocial risk assessments, employee engagement, well-being initiatives, flexible working arrangements, and training managers to recognise and respond to mental health issues.
  • Documenting these efforts and capturing employee feedback is critical to demonstrate proactive management and can serve as a key defence in claims related to workplace stress or harassment.
  • Failure to address psychosocial risks can lead to increased claims and regulatory scrutiny, making this an essential area for investment and cultural change.

Top risks in health and social care: What you need to know

Certain risks consistently feature in claims and regulatory investigations within health and social care:

  • Choking incidents: Choking remains a leading cause of avoidable death in care homes, with 136 choking deaths reported over the period 2018-2022, liked to food and drink-related choking. These incidents are most frequent in residential and nursing care homes, especially among older adults and those with swallowing difficulties.
  • Pressure ulcers (sores): Around 700,000 people in the UK develop pressure ulcers each year, many linked to inadequate care or delayed treatment. Pressure ulcers are a common cause of claims and Care Quality Commission (CQC) enforcement actions.
  • Falls: Around 25% of falls among residents of nursing homes result in serious injuries, and 40% of hospital admissions from nursing homes are due to falls.
  • Medication errors: Medication-related incidents remain a significant source of harm and litigation, costing the NHS millions annually.

Regulatory investigations, CQC prosecutions, and personal liability

Regulatory scrutiny in health and social care is intensifying, with the CQC actively investigating and prosecuting breaches of care standards. For example:

  • When comparing 2009-2013 and 2019-2023, prosecutions by the Care Quality Commission (CQC) surged by 700%, from 11 cases to 88. They also more than trebled when compared with the five years spanning 2014-2018, during which there were 25 cases.  In 2025 alone, the CQC has took 45 prosecutions (totalling over £2m in fines) against care providers for failures, including neglect, poor infection control, and unsafe staffing levels.
  • The health and social care sector reported the highest rate of work-related ill health with 5,953 cases over the 12-month periods from 2021/22 to 2023/24, while HSE breaches in the sector resulted in annual average fines of £2 million between 2021 and 2024.
  • Personal liability is a growing concern. Under the Health & Safety at Work Act, senior leaders can face personal fines and custodial sentences of up to two years for breaches linked to ‘controlling mind’ responsibilities. 
  • Coroners’ inquests often highlight systemic failings that lead to further regulatory action and reputational damage.

These regulatory actions are uninsurable and can result in devastating financial and reputational consequences for organisations and individuals.

Preparing for the future: What employers can do

  • Invest in robust, specific, and well-retained documentation and training, including psychosocial risk management.
  • Ensure incident investigations are objective, thorough, and evidence-based, incorporating psychosocial factors where relevant.
  • Understand the regulatory environment and personal liability risks; conduct mock trials and regulatory reviews.
  • Prioritise psychosocial risk management by engaging with employees, promoting mental well-being, and fostering supportive workplace cultures.
  • Use data and technology to monitor risks and compliance proactively.

How Marsh McLennan can help

Defending claims and regulatory investigations in health and social care is complex and challenging. That’s why Marsh McLennan’s Defensibility and Regulatory Practice and Healthcare Industry Leader have joined forces, blending deep technical and legal expertise, turning sector insight into your strongest defence.  

By strengthening documentation, training, investigations, and addressing psychosocial risks, organisations can improve their defensibility, protect their people, and deliver safer, more sustainable care.

At Marsh McLennan, we help our clients to enhance their mental and well-being programmes and navigate the complexities of a robust defence. Get in touch to discuss how we can support your organisation in navigating these challenges.

To discuss how Marsh McLennan can support your organisation in navigating these challenges, please get in touch with our Defensibility and Regulatory Practice. 

Our people

Sarah Triggs

Sarah Triggs

Health and Social Care Leader, Marsh McLennan UK Industries

  • United Kingdom

Related insights

QR Codes Asset warehouse and inventory management supply chain technology concept. Group of boxes and Automation robot arm machine in storehouse.

Article

Strengthening NHS supply chain resilience in an era of uncertainty

13/11/2025
Health trends 2026

Report

Health Trends 2026

20/10/2025
Placeholder Image

Article

Why professional services firms should prioritise health, wellbeing, and psychological safety in the workplace

09/09/2025
The View of wildfire on height of the flight of the bird.

Podcast

Risk in Context Podcast: Protecting people, business, and infrastructure from extreme heat impacts

04/09/2025
View more