Past experience, as Health & Safety Director for a large corporate business, taught me to be wary of the Court’s power to impose large fines when poor legal compliance puts employees at risk of harm. Whilst the legal framework is the same, however, significant fines for endangering health have been less common than for safety failures. But in recent years HSE has been more active in reviewing and taking enforcement action for poor health surveillance provision.
Ramsay Health Care UK (RHC) employs approximately 4,500 staff and runs 36 private hospitals and care homes. After a long running and expensive case RHC has been hit with a £550,000 fine, £36,000 in court costs and a significant legal bill for its own defence, after being prosecuted for breach of the Health & Safety at Work Act.
The prosecution is a salient reminder that timely provision of health surveillance and adequate occupational health support is a key part of the duty of care for very many employers. RHCs prosecution resulted from the failure to protect patients, staff and members of the public and followed a number of Improvement Notices, which may also have significant impact on a business.
RHC had failed to recognise that a nurse with a skin disease should have been detected early through pro-active health surveillance as requiring advice and treatment to protect her from occupational dermatitis, caused by a latex allergy.
Importantly too, RHC were prosecuted for failing to provide adequate occupational health services, to ensure health risks were identified and adequately controlled. The court were told that having previously contracted in occupational health services, RHC set up its own “wellbeing service” but inadequately resourced the service, which was led and delivered by health care professionals who lacked the qualifications and competence to provide safe and effective occupational health advice.
The case highlighted that delays in adequate health surveillance, failure to review and act on findings and failings in employing the wrong occupational health staff was culpable. Another key part of the prosecution related to simple screening, pre-placement questionnaires were filed but not reviewed and actions such as blood testing had not been correctly or reliably undertaken or interpreted – putting staff and patients at risk of bloodborne disease.
Lack of systems meant that the fact that the right actions had not been completed lay undetected, and the company had a poor OH records system with chaotic unmonitored workflows.
It’s too easy to dismiss this case as an anomaly! Whilst it’s a landmark in its scale, my experience over many years has shown me that many employers struggle to provide compliant health surveillance. This may begin with the employer failing to adequately recognise its duty of care, but then the pathway to ensure adequate surveillance is provided may also be a hard one. An employer, whether large or small, must then ensure that their employee gets the right assessment, at the right timing and by the right (and appropriately trained and competent) health practitioner. When they get the results, they are also responsible for reliably taking the right actions to promptly make work adjustments if needed.
This is hard! Many employers lack clear processes and systems to enable this to happen well. For many these systems rely on multiple records that don’t always interlink, and the risk is that actions fall between the cracks.
The Empactis platform contains a module called Health Manager which helps line managers recognise when health surveillance is needed, ensures that tasks required to deliver such are efficiently and effectively completed and that outcomes are clear and tracked. A clear timeline is recorded, which enables audit and demonstration of legal compliance and the system is designed to avoid the “swiss cheese” of failures that the RHC case portrays.
It can be hugely costly to get this wrong!
For more information on the Empactis Health Manager platform call the number above, or visit our Health Manager page.