Up the Revolution – The law of unintended consequences strikes again

1. Up the Revolution – The law of unintended consequences strikes again David Sinclair Chartered health and safety practitioner and solicitor

2. Disclaimer This presentation and any accompanying notes are made available on the basis that no liability is accepted for any errors of fact or opinion they may contain. Professional advice should be obtained before applying the information in particular circumstances.

3. Guardian – 29 August 2013 “The Astbury case marks a turning point for the HSE since it is moving away from the traditional NHS role of holding trusts responsible for the physical state of infrastructure and ensuring it is safe, to one of prosecuting and policing a hospital’s clinical governance and administration of care”

4. HSE response – 30 August 2013 “It is not the case that the Mid Staffs prosecution constituted a change in the HSE’s regulatory role in respect of the health service and that it had previously prosecuted NHS trusts in relation to similar incidents as that at Mid Staffs” “The HSE’s current regulatory role in the health sector concerns cases in which there is evidence of safety management failings”

5. Francis Inquiry HSE accepted that there may be serious non-RIDDOR reportable patient safety incidents that the HSE should consider investigating “Where the Chief Inspector identifies criminally negligent practice in hospitals, the Care Quality Commission will refer the matter to the Health and Safety Executive to consider whether criminal prosecution of providers or individuals is necessary” Patients First and Foremost

6. 2014 – All change • Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 • Fundamental Standards of Quality and Safety • Memorandum of Understanding between the CQC and the HSE on the enforcement of health and safety law relating to patients/service users • Plethora of MOUs followed

7. HSE 2015 • HSE intervenes in a NHS Trust regarding a non-clinical issue • The Trust is criticised on a number of management and governance issues • Key issues for the HSE are:

8. Key issues of concern • Health and safety has effectively been delegated by the Board • There is a failure of Board oversight and monitoring • Board lack appropriate training • There is a failure to adequately consult with employees and particularly with unions, in a meaningful way

9. Issues of concern (2) • There is a failure in communication with employees on health and safety generally • Health and safety committee is not fit for purpose • Control measures were not sustained or sustainable • Managers who are unable to manage health and safety should be moved on

10. HSE conclusions “There is a key balance to be struck between the Board and senior managers becoming involved in the minutiae of day to day health and safety matters and having reliable assurance policies and procedures to assure themselves that the law, good practice and communications are being adhered to and working well. This can only be done effectively if very senior members of the Trust have adequate knowledge to assess and appraise what they are told, what they receive in reports and in the results of audits – that is, to cut through the obfuscation that sometimes arises”

11. HSE requirements – What good looks like • The Board has to take ownership of the health and safety of its staff and contractors • Trusts have to seek assurances from external health and safety auditing bodies (some of which are quite good) • The good management of health and safety is not optional • Effective consultation with employee representatives is an absolute requirement

12. HSE requirements (2) • Boards must be appropriately trained with the lead having completed e.g. IOSH Managing Safely • Health and safety as a standing item on Board agendas with meaningful discussion at meetings • Board director for occupational health and safety as opposed to patient safety • Board consideration on whether or not managers are capable of managing health and safety effectively

13. Watch this space

14. Up the Revolution – The law of unintended consequences strikes again