The HSE is not suggesting that its new policy would apply to all public safety issues. So, for example, where there is a work-activity that not only impacts upon workers but also members of the public, then the HSE would continue to enforce section 3 of the HASAW Act.

What this policy effects are, principally, those activities that do not impose any risks upon workers but solely upon members of the public.

In its new policy document, the HSE have set out those areas where there will be no investigation subject to the presence of three criteria and in relation to each of them clarifies HSE's position:

Doctors, Hospitals etc.
The new policy states the following:

"HSE's current stated policy is that it does not, in general, seek to apply [section 3 of the 1974 Act] to matters of clinical judgment or the level of provision of care as other legislation and regulatory bodies deal with these matters. Furthermore, the Reporting of Injuries, Diseases and Dangerous Occurrences (RIDDOR) Regulations 1995 do not require the reporting to HSE of incidents arising out of the conduct of any operation on, or any examination or other medical treatment of that person, by a doctor or dentist.

The Department of Health, and bodies such as the Commission for Health Improvement (CHI) and equivalent bodies in Scotland and Wales, regulates standards of clinical governance, including systems of work, in healthcare. For example, issues such as associated infection are addressed by CHI and other agencies during visits to establishments. Similarly, doctors, dentists etc. are regulated by other bodies e.g. General Medical Council (GMC) and other legislation applies to cases of clinical misconduct including manslaughter/culpable homicide or offences under the Medical (Professional Performance) Act 1995, under which the GMC operates. In terms of our current priorities, and on Better Regulation grounds of targeting and proportionality, it would be difficult to justify action by us in many of these cases.

However, it is intended that HSE will continue to deal with the major non-clinical risks to patients such as trips and falls, scalding, electrical safety etc.; and with some aspects of risks that apply to both staff and patients alike, such as some healthcare associated infection precautions. Such incidents are normally reported to HSE under RIDDOR. HSE will also continue to work with other enforcement agencies such as the Medicines and Healthcare Products Regulatory Agency in areas where the boundary between "clinical risk management" and "health and safety management" may not always be clear.

Discussion: A major issue here is the way the HSE should deal with deaths/major injuries to patients resulting from clinical risks which are the result of failures in working practices within a hospital.

It appears from this new policy that the HSE will not be investigating deaths and injuries where the incident may be the result of the working practices of a hospital.

Its justification for this position places great emphasis on the presence of other regulatory bodies - which is of course one of the three criteria which precludes HSE involvement. However the following should be noted:

Because of the existence of these two regulatory bodies, when a death or injury is the result of "clinical" conduct on the part of the hospital, the hospital’s management practices will not be subject to any investigative scrutiny by an outside body. In effect the hospital will have gained immunity from having to comply with certain of its section 3 obligations.

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Road Traffic Incidents
The new Policy states the following:

Road traffic law is enforced by the police and others, e.g. the highways authorities and traffic commissioners. The police will, in most cases take the lead in the investigation of road traffic incidents on the public highway.

There are a small number of road incidents where HSE will lead, for example where work vehicles are engaged in specific work activities on the public highway, and these are detailed in a HSE Operational Minute OM 2003/103.

HSE is currently working with the Police to identify and develop criteria that will allow police officers with responsibility for road traffic incidents to better identify where serious safety management failures have been a significant contributory factor so that HSE's resource can be properly targeted."

Discussion: The issue here is that, outside of the very limited circumstances outlined in OM 2003/103, a significant number of other road traffic deaths and injuries are estimated to be the result of safety management failures. It appears sensible to use the police as the filtering agency, but this presupposes that the police are considering safety management issues when they undertake investigations.

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Deaths in Custody
The new policy states that:

In England and Wales inquests are held into all deaths in custody. In Scotland, the Procurator Fiscal leads the investigation and this may result in a fatal accident inquiry. Article 2 of the ECHR (set out in Schedule 1 to the Human Rights Act) is considered to require a proper inquiry into every death in custody. In England and Wales, HSE is seeking to clarify who carries out this proper inquiry with the Home Office and Lord Chancellor's Department. HSE is considering more formal agreements with other interested bodies in England and Wales, e.g. Prisoner Escort Custodial Service (who investigate deaths in magistrates court cells), the Prisons Ombudsman (who it appears will be taking on investigation of the increasing number of suicides in prisons) and possibly HM Inspectorate of Prisons, to enable HSE to better define the boundaries of its involvement in this work. The HSE/Police Complaints Authority Protocol (England and Wales) makes it clear that HSE will not seek to lead on cases of self-harm or suicide in cells. We may need to extend the Protocol to include all deaths in custody. In Scotland, HSE will consider this issue in its discussions with the Crown Office/Procurator Fiscal Service about a possible work-related deaths protocol.

Discussion: At present, all deaths and serious injuries suffered by members of the public resulting from police activities will be investigated by the Police Complaints Authority (PCA). The PCA is an independent body established under the Police and Criminal Evidence Act 1984, and has a statutory obligation to supervise the investigation of complaints against police officers in England and Wales which involve death or serious injury (as well as other complaints). The PCA has to approve the appointment of the investigating officer (a police officer) and may give directions on the conduct of the inquiry.

The supervised investigation by the PCA will in almost all cases deal solely with whether the death was the result of manslaughter or the injury the result of assault. Whilst the investigation may consider the working practices of the police force concerned, this will not be done in order to determine whether health and safety offences have been committed and the PCA does not have the power to impose improvement or prohibition notices that would require changes in the working practices of the police, or indeed propose prosecution for health and safety or other similar offences.

As noted in the HSE's new guidance, an agreement (the 'Protocol') has been reached between the PCA and the HSE which "sets out the arrangements which have been agreed between HSE and the PCA in order to clarify their respective roles and involvement in these investigations."

In relation to ‘reportable’ deaths and injuries, the agreement states:

"When the Principal Inspector in the HSE local office receives notification from the police of a relevant accident to a member of the public, he may contact the supervising Member of the [PCA] for that police force, in order to inform the Member of whether he intends to investigate the accident, and to establish whether a complaint against the police has been referred to the Authority in connection with that accident. Whether or not the inspector decides to carry out a separate investigation, he may request from the Authority the necessary information to establish whether the findings include relevant health and safety issues."

To read more on whether a death or injury is reportable, click here

In relation to other incidents, the agreement states:

"Members of the public and police staff may also seek to involve HSE inspectors in the investigation of complaints against the police, either in connection with accidents (whether or not they are reportable under RIDDOR), or other circumstances. In either case, HSE may decide to refer the complainant to the existing police complaints procedure, to which more specific legislation applies: Part IX of the Police and Criminal Evidence Act 1984 and Regulations. Before deciding whether to investigate a particular complaint which may be of relevance to the Authority, the Principal Inspector will liaise with the relevant Member of the Authority.

"In general, HSE inspectors will not seek to investigate incidents where the main issue is whether reasonable force has been used by a police officer in dealing with a member of the public; or whether the use of equipment for self-defence or deterrence, arrest or restraint such as CS incapacitant or firearms has been appropriate in the circumstances; or where there have been third party injuries as a result of the use of CS or firearms."

In relation to suicides, the agreement states:

"Another area of potential public concern is self-harm and suicide in police custody, which are not accidents as defined in RIDDOR, and therefore not reportable. Recognising that the Authority will normally investigate such cases, HSE inspectors will not seek to carry out separate investigations, although they may request relevant information."

It is not clear why the HSE states so categorically that it "will not seek to carry out separate investigations" into suicides, when the suicide might indicate poor working practices on the part of the police. Indeed, in a number of cases, the HSE has been involved in the investigation of suicide cases. HSE’s practice in this area therefore differs from its written policy.

To see a copy of this agreement, Click Here

The result of the new policy will mean that the HSE will very rarely, if at all, investigate the working practices of the police when a death takes place.

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Passenger aviation health issues
The new policy states that:

The Department for Transport has recently announced the establishment of an Aviation Health Unit to be established within the auspices of the Civil Aviation Authority (CAA) to deal with aviation health issues affecting both passengers and crew.

HSC also believes that the CAA has the greatest technical and practical expertise and is best placed to effectively regulate occupational health and safety issues affecting both flight and cabin crew, including, if necessary, to enforce any relevant European Directives on HSC/E's behalf. Where necessary, HSE will provide training, advice and support to establish the necessary expertise within CAA.

Discussion: The Aviation Health Unit (AHU) was formed on 1 December 2003. According to its website it is based at Gatwick within the Civil Aviation Authority’s (CAA’s) Medical Division, and its main role is to advise government, through the Aviation Health Working Group (AHWG), on passenger and crew health issues.  The AHWG is an interdepartmental organisation, chaired by the DfT, with representatives from the CAA, Health and Safety Executive and the Department of Health. It meets every two months to discuss issues relevant to aviation health and was instrumental in the decision to form the AHU. At alternate meetings, industry and passenger representatives attend. Funding is currently provided by the DfT, but as soon as legislation can be amended the CAA will fund the unit through charges to the aviation industry.

Its origin lies in a House of Lords Select Committee report on the subject of air travel and health in November 2000 which recommended that a central source be given responsibility for advising government on the issues relevant to aviation health. After a process of consultation, this responsibility was given by Government to the CAA.

According to the website, "The subject ‘aviation health’ encompasses a wide range of individual topics, such as deep venous thrombosis, cabin air quality, transmission of infection, cosmic radiation and the provision of information.  A responsibility of the AHU will therefore be to review research and other relevant information on aviation health and to set priorities, in consultation with the Aviation Health Working Group, for areas which require further attention"

The following characteristics are notable of this new unit within the CAA:

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Inland waterways
The new policy states that:

There are a range of other bodies that inspect e.g. Maritime and Coastguard Agency, Environment Agency/Scottish Environment Protection Agency, British Waterways, local authorities, etc. The roles and responsibilities of the various organisations with responsibility for safety issues are set out in a Department for Transport report "Inland Water Safety - Final report of scoping study" 1.

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Large reservoirs
The new policy states that:

Where reservoirs fall within the definition of "large raised reservoir", HSE accepts that the integrity of the reservoir structure is assured through the provisions of the Reservoirs Act 1975.

The Reservoirs Act 1975 places a duty on local authorities to maintain a register of large raised reservoirs which can contain more than 25 000m3 of water above the natural level of any part of the land adjoining the reservoir. The Secretary of State appoints specialist engineers to panels set up under the Act. Panel Engineers are required to advise the undertakers on any aspect of the behavior of the reservoir that might affect safety.

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Planning matters
The new policy states that:

Proposals for the development of airports and other civic amenities that may impact on people living in the surrounding areas. HSE will continue to enforce in respect of any construction or civil engineering works taking place and in respect of any major hazard sites subject to planning controls, but will not involve itself in matters subject to local planning authorities or public inquires.

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Fencing of quarries
The new policy states that:

The Mines and Quarries Act 1954 (MQA) s.151 concerns the fencing of all quarries whether in the course of being worked or not. Section 151(2)(c) deems a quarry to be a statutory nuisance under the Environmental Protection Act 1990 if: (1) it is not provided with an efficient and properly maintained barrier so designed and constructed as to prevent any person from accidentally falling into the quarry; and (2) by reason of its accessibility from a highway or place of public resort constitutes a danger to members of the public. MQA s.151 is not a relevant statutory provision under HSWA. However, HSE will continue to enforce Regulation 16 of the Quarries Regulations 1999, concerning the provision and maintenance of barriers, at active quarries.

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Failure of Local Authority Decision making
Local Authorities have many obligations that if not properly performed can result in risks. These include, for example, road gritting, management of social services child protection measures, maintenance of roads/signage, effective policing etc.

The new policy states

Other specific legislation sets out the requirements on Councils etc. as to the performance of their statutory duties including the remedies and penalties (if any) for failure to perform that duty.

We do not think that those responsible for the legislation governing the performance of Councils will have envisaged that HSE might become involved in its subject matter. And nor are they matters in which HSE has any particular expertise.

Any intervention by HSE would be to interfere in matters that fall within the province of another Secretary of State or another devolved administration and those affected by that legislation. Examples include, road gritting, management of social services child protection measures, failure to maintain roads/signage, effective policing, which are the subject of other regulatory regimes.

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Buildings and other structures
The new policy states:

In addition to the duty on an employer in respect of their employees, section 4 of the HSWA, and certain health and safety regulations, impose duties for the protection of certain classes of persons in relation to the condition of premises. Where persons outside that protection are exposed to risks arising out of the condition of buildings or other structures, HSE inspectors will not ordinarily consider an investigation save in cases where death or serious injury has occurred and they are provided with a sufficient indication that a breach of section 3 was the probable cause or significant contributory factor. In many cases, local authorities are best placed to act because of their specific powers under the Building Act etc. and equivalent devolved legislation to deal with defective premises, buildings and structures.

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Consumer safety issues
The new policy states

HSE will not ordinarily investigate cases relating to the safety of consumer goods in cases where Part II of the Consumer Protection Act 1987 provides an adequate penalty. In other cases, or in the case of a failure to provide, or provision of faulty, consumer services, HSE inspectors will not ordinarily consider an investigation save in cases where death or serious injury has occurred and they are provided with a sufficient indication that a breach of section 3 was the probable cause or significant contributory factor.

It is expected that the proposed Document P to the Building Regulations will bring in a checking and certification regime for new domestic electrical works, so providing an adequate means of enforcement instead of reliance upon Section 3.

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Risks from Natural Features
This relates to risks arises from natural features e.g. cliff edge, lake, river, stream, falling trees, falling rocks (e.g. Cheddar Gorge).

The new policy states:

When people enjoy the countryside or other open spaces they owe a duty to themselves and their dependents to take proper care. Save in special circumstances e.g. managed landscapes such as parks, it is not desirable that access be restricted or that other measures be taken that diminishes the amenity from fear that an accident may result in prosecution.

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Hazardous leisure pursuits e.g. Bungee jumping, water sports, etc.
The new policy states

Responsible risk-taking should be regarded as normal, and we should not discourage members of the public from undertaking certain activities solely on the grounds that there is an element of risk. Excessive paternalism and concern with safety may lead to infringements of personal rights. Those who are competent to judge the risk to themselves should be free to make their own decisions so long as they do not threaten the safety of others. The nature of these pursuits is such that, where there is an accident, a fault on the part of an employer cannot be presumed. HSE inspectors will not ordinarily consider an investigation save in cases where death or serious injury has occurred and they are provided with a sufficient indication that a breach of section 3 was the probable cause or significant contributory factor.

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