FIONA DALZIEL
MA(Hons) CIHM FIHM
Independent Consultant in Practice Management
Fiona is an experienced primary care trainer and facilitator. She is the national RCGP QPA Adviser and has advised on both the original and the review of the Quality and Outcomes Framework of the 2004 GP contract
Largely as a consequence of the media’s recent unrelenting coverage of all things recession-related, it may have slipped your notice that the Health and Safety (Offences) Act 2008 received Royal Assent in October and came into effect from 16 January 2009.
However, it is worth noting that this particular piece of legislation contains the threat of imprisonment for any employee who may have contributed to a health and safety offence through consent, connivance or neglect.
I suspect you are now tempted to read on. Judith Hackett, Chair of the Health and Safety Executive (HSE) says, reassuringly: “Our message to the many employers who do manage health and safety well is that they have nothing to fear from this change in the law”.(1)
So, rather in the way that your mother used to say, “Well, dear … you can only do your best”, you don’t have to worry just as long as you are on top of health and safety in the practice. A summary of the changes may help to motivate those who might question whether they are really in this enviable position.
What does the Act mean?
The Act has come about as the consequence of the promises of both the government and the HSE to increase the sentencing powers that courts have in relation to health and safety crimes. The Act does the following:
- Raises the maximum fine that may be imposed in lower (Magistrates’) courts to £20,000 for most health and safety offences.
- Makes imprisonment an option for more health and safety offences in both the lower and higher (Crown) courts.
- Makes certain offences, which are currently triable only in the lower courts, triable in either the lower or higher courts.(2)
It is only intended that custodial sentences will be used in cases that are so serious as to cause public outrage. The kinds of offences that would be thus described would include the following:
- Serious neglect.
- Reckless disregard for health and
- safety requirements.
- Repeated breaches causing significant risk.
- False information.
- Deliberately creating serious risks in order to maximise profit.
In a case of a serious breach of health and safety legislation, a business can be prosecuted under the Corporate Manslaughter Act 2007. This Act does not carry with it the potential of imprisonment as a penalty. In parallel with the prosecution of the business, an individual could be prosecuted under the new Health and Safety (Offences) Act, which does carry the possibility of imprisonment. It remains unclear what kind of position an individual would have to hold in the business in order to be vulnerable to prosecution.
What is clear, though, is that this is a significant change. In Scotland, it has led to the creation of the Specialist Heath and Safety Prosecutions Division, who will be three geographically based teams of lawyers solely dedicated to health and safety investigation and prosecution. The consequence of this will be efficient prosecutions and a higher chance of being convicted. For partners and practice managers alike, the preferable course is to be in a position to avoid either of these eventualities by making certain that health and safety is effectively managed in the practice.
Ten-point plan
The HSE website (see Resources) provides comprehensive information and guidance, along with sample risk assessments, to support businesses in complying with health and safety legislation. A useful 10-point plan leads employers through the basic steps required by law, as follows:
- The HSE requires to be notified before certain types of work begin. This covers work with hazardous substances such as asbestos, pesticides and biocides and work on construction projects. Practices should seek advice from the HSE on 0845 345 0055 if in doubt, but most GP practices will not fall into this category of work.
- Take out Employers’ Liability Compulsory Insurance (see Resources). This insures against liability for injury to employees or disease arising out of employment by the business. Businesses require cover for at least £5m, and most insurance companies offer more cover than this. The certificate of insurance must be displayed where it can be easily read by employees. Since October 2008, the legal requirement for employers to keep copies of out-of-date certificates has been dropped, but you should probably keep this information anyway.
- Businesses must appoint someone to assist them with meeting their responsibilities under health and safety law. This can be the employer themselves, a worker in the business or an external advisory service (see Resources). Most GP practices appoint the practice manager to this role.
- Have a Health and Safety Policy, which describes how you manage health and safety issues. This will describe how you put in place any control measures and how you monitor their effectiveness, as well as being reviewed regularly. This must be recorded in writing for a business with five or more employees, so some very tiny practices will be exempt, but writing this down is good practice anyway. A draft policy is available to download from the HSE website (see Resources).
- Undertake risk assessments to identify hazards and put in place control measures to minimise the risk of potential harm to staff and others using the premises. This requires some thought and preparation, as every practice has the usual office environment risks, plus specific ones related to clinical practice, including those covered by the Control of Substances Hazardous to Health (COSHH) Regulations. The HSE’s Five Steps to Risk Assessment (see Resources) will give you a start, but specialist tailored risk assessment documentation is widely available, which is useful for practice managers. The important thing to remember here is that the introduction and monitoring of control measures in response to the hazards is what protects staff. The absence of these control measures, or faulty implementation and monitoring, will increase the possibility of an accident and the potential for prosecution.
- Employers must provide a safe and healthy working environment. This covers welfare facilities (eg, toilets, handwashing facilities, drinking water), health issues (eg, temperature, lighting, clean working environment, safe work stations) and a safe environment (eg, safe flooring, absence of trip hazards, safe windows). This also covers people with a disability and health-related issues such as workplace stress. Information is available from the HSE (see Resources).
- The practice must train staff on how to work in a safe manner and protect their own and others’ health. Keep a record of this training, which should be repeated regularly.
- Staff must be given the opportunity to discuss any health and safety concerns. The type of issues raised by swine flu would be a good example of this. You must consult all staff and give them a chance to influence decisions. Further guidance can be found in the HSE document Consulting employees on health and safety (see Resources).
- The practice must display the Health and Safety law poster. An updated version of this was published on 6 April. There is a five-year transition period (until 5 April 2014) to allow for displaying this new-style poster. Details of how to obtain one are available from the HSE’s website. The new posters will have a unique hologram to avoid the problem with scam packs, which many practice managers will remember from when the original posters were first introduced.
- Certain types of accidents or health and safety events must be reported under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR). Fortunately, this type of event is rare in practice but does cover injuries sustained at work where the employee is absent or unable to perform their duties for more than three days – a fall at work causing a fractured wrist may, for example, trigger this. Comprehensive details and ways to report are to be found at the HSE website.
Summary
The new legal penalties for breaches of health and safety legislation reflect the importance of this area in a practice manager’s responsibilities. Making health and safety a routine part of your weekly work will help keep this area manageable. Further articles in this series on risk management will concentrate on providing advice on specific health and safety activities to help ensure you can do this effectively.
References
1. Health and Safety Executive. The Health and Safety Offences Act 2008: HSE Chair Judith Hackitt welcomes tougher penalties. 15 January 2009. Available from: http://www.hse.gov.uk/press/2009/e09011.htm
2. Office of Public Sector Information. Health and Safety (Offences) Act 2008. London: The Stationery Office; 2008. Available from: http://www.opsi.gov.uk/acts/acts2008/ukpga_20080020_en_1
Resources
Health and Safety Executive
www.hse.gov.uk
Health and safety policy statement
www.hse.gov.uk/business/policy-statement.pdf
Five Steps to Risk Assessment
(HSE guidance)
www.hse.gov.uk/business/policy-statement.pdf
Getting specialist help with health and safety (HSE guidance)
www.hse.gov.uk/pubns/indg420.pdf
Employers’ Liability (Compulsory Insurance) Act 1969. A guide for employers.
www.hse.gov.uk/pubns/hse40.pdf
Workplace health, safety and welfare – a short guide for managers
www.hse.gov.uk/pubns/indg244.pdf
Consulting employees on health and safety
– a brief guide to the law
www.hse.gov.uk/pubns/indg244.pdf
RIDDOR (HSE website guidance)
www.hse.gov.uk/riddor
