Caught in a tightening fire safety net

Examining this important issue, which she warned delegates could “easily catch out the unwary”, was Professor Rosemarie Everton, an Emeritus Professor and former chair of fire law at the University of Central Lancashire who, in addition to being an expert on the subject, is also a retired barrister and a fellow of The Institution of Fire Engineers (IFE).

The professor, whose address mixed wry humour with invaluable advice, was described by conference chairman, the IFE’s John Judd, as “a legendary presenter on fire safety issues”.

She began by explaining that the Regulatory Reform (Fire Safety) Order 2005 (widely abbreviated to the “RRO”), which came into effect in autumn 2006, was “moulded on” the previous Fire Precautions (Workplace) Regulations 1997, “but considerably broadened their thrust”. With a “European pedigree”, the Order was “goal-based”, and “rationalised” existing fire safety legislation, applying to “virtually all workplaces, and places to which the public have access”. It was designed to protect “relevant persons”, i.e. employees and others on, and in, the immediate vicinity of the premises in question.

Fire safety responsibility has ‘shifted’

Critical to an appreciation of the Order’s core was to note that, in contrast to the Fire Precautions (Workplace) Regulations, the Order shifts primary responsibility for fire safety from local fire authorities to the “responsible person or persons”. To identify such persons, Prof. Everton said it was necessary to “very vigorously crystallise the mind”.

However, within a large acute Trust, such individuals might, she explained, typically include not only the chief executive and a designated Board-level director, but equally a hospital’s fire safety and/or fire officer or officers, fire wardens, and some departmental managers.

Before discussing what this might mean for a range of different-sized healthcare facilities or bodies, Prof. Everton explained that, at the heart of the “host of specific fire safety-related requirements” the Order sets out are a number of core elements, including the “pivotal obligation” to undertake regular fire risk assessments. “From this, there fan out other key requirements, including those relating to the taking of fire fighting and detection measures, ensuring facilitation of escape, the taking of measures to reduce the risk and spread of fire, and the taking of measures to mitigate its detrimental effects,” she explained.

A ‘degree of tempering’

While conceding that, at first sight, the Order’s scope and detail could be perceived as “fearsome”, the professor said the regular use of words such as “where necessary”, and “appropriate”, in relation to the measures expected be taken by Trust Boards and fire safety personnel to ensure compliance, afforded a “degree of tempering”.

The professor emphasised that the Order stipulates that local fire authorities are the main “enforcers” of the Order’s provisions, among their powers being the option to serve an enforcement notice on a Trust or other non-compliant healthcare organisation. However, the Order had, she said, been drafted in such a way as to recognise the shift in responsibility for fire safety to “responsible persons”. Fire authorities were also expected, in considering serving a notice, to give the responsible person, or persons served with it, a choice between ways of remedying any deficiencies.

Arguably, however, the most important issue was “on whom does the Order place its obligations, and how do those made to shoulder stand on them?” To answer this the professor said it was necessary to look carefully at Article 3 of the Order, which sets out the legislation’s “understanding” of the concept of the “responsible person”. In essence, in a typical hospital setting, this “responsible person” will be the overall employer or “owner”, for instance an acute Trust, provided that the workplace is “to any extent under his control”.

‘Bearers of burdens’ also targeted

However, Prof. Everton emphasised the Order also imposes a degree of responsibility for fire safety on persons it regards as “bearers of burdens”. Article 5, paragraph 3 of the Order, stipulates that: “Any duty imposed on the responsible person in respect of premises shall also be imposed on every person other than the responsible person who has to any extent control over those premises.” Meanwhile, paragraph 4 of the same “Article” provides that “where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation either to (a) the maintenance or repair of any premises, or to (b) the safety of any premises, that person is to be treated as being a person who has control of the premises.”

“From what I have just noted you will appreciate that the net cast by the Order is extremely wide and that its meshes are particularly intricate,” the professor said. To give delegates a clearer “real-world” indication of who might be considered “responsible persons” by enforcement bodies such as local fire authorities, she first considered the example of a “single occupied PCT-run hospital”, explaining that, were fire safety defects to be found, for example poor means of evacuation or inadequate fire detection equipment, it was likely that, as the employer of the majority of the staff, the PCT itself would be served with any enforcement or improvement notice.

Meanwhile, in the very different scenario of a large acute hospital, parts of which might be devoted to the Trust’s own acute services, but with others let out to a local PCT, community and social services, as well as commercial operators running, say, small shops, the situation would be “a little more complex”.

Here it was likely that, while the acute Trust would have fire safety responsibility for the main hospital buildings and any unoccupied common parts, responsibility for any other occupied parts, such as the hospital shop, would fall on the tenant or “other occupier” of those facilities.

However, Prof. Everton explained, where a Trust or other healthcare facility operator had entered into a contract whereby the other, contractual party is “not an occupier, but sends in its own employees to provide a service” (for instance an outside cleaning company), it was likely that the Trust would retain responsibility for such personnel while on its premises, as the law argues that, in such circumstances, the “outside employer” cannot “exercise control” (at all times) over its staff.

CEOs must define roles

Prof. Everton emphasised that, in a wider context, it was important for Trust CEOs to clearly define fire safety responsibilities within their organisations in accordance with the Department of Health’s HTM 05-01 Healthcare Technical Memorandum. While the RRO meant there was now a “widespread vulnerability” to being held as a “responsible” person or authority for fire safety, Prof. Everton said she believed it was the legislators’ intention that the target of any improvement or enforcement notice should generally be “among the senior echelons of any Trust”.

While, with the Order only in force for the past 18 months, there remained “considerable uncertainties” in the way the Courts might interpret its provisions (relating to who actually constitute “responsible persons” etc), the professor said such uncertainties would typically “bring with them an element of goodwill among those charged with enforcement”.

The key, she concluded, was for fire safety officers, board and managementlevel personnel charged with overall fire safety responsibility, external fire consultants, and local fire authorities, to “all work together in a spirit of partnership”.

“Good co-operation is absolutely paramount if we are to ensure effective, properly enforced, and practicably manageable fire safety provision in our hospitals and other healthcare facilities,” the professor concluded.

As elusive as the Pimpernel?

She added amusingly as an aside that the search for the “responsible person” sometimes seemed to her akin to the quest, by the increasingly exasperated and frustrated law enforcement authorities in Baroness Orczy’s famous, eponymous book, for the elusive Scarlet Pimpernel, quipping in her own, suitably adapted version of the words from the classic novel: “We’ve sought them here, we’ve sought them there, we’ve sought them everywhere. Are they in heaven or are they in hell, this law’s elusive personnel?”

Picture courtesy of the London Dire Brigade