‘Directing minds’ have much to consider

In the first of two articles (the second will appear in October’s issue) covering the event, HEJ reports on a specialist lawyer’s overview.

With an ever better-informed public demanding higher standards in all areas of hospital care, a tightening regulatory framework, with more frequent inspection of healthcare facilities to ensure such standards are being kept up, plus, at many Trusts, hospital estates and facilities managers’ workload mounting as quickly as their capital budgets are falling, a seminar examining the whole area of risk assessment and risk management in the healthcare sector could hardly have come at a more apposite time. Initiating proceedings at the seminar, which was titled “Planning for Uncertainty – The Role of Risk Management in Estates”, with a look at the legal requirements facing NHS Trusts and other healthcare providers in managing risk assessment, and the potential consequences should they fail to meet statutory and other duties, was Colin Moore, an associate at law firm Beachcroft LLP, and a member of the firm’s nationwide Safety, Health, and Environment (SHE) team. He began by explaining that much of the SHE team’s time was now taken up with defending large organisations, including NHS Trusts, in cases where health and safety procedures had either not been properly followed, or where risk assessment polices and procedures had been so poorly set out that the courts had felt they had little alternative but to heavily fine defendants whose actions, corporately, it had been determined, had caused death or serious injury.

While NHS Trusts often themselves believed that their existing risk assessment and health and safety procedures and polices were adequate, in practice the speaker said a tightening in the way the law viewed responsibility for injury and death, and the inability of such organisations, on occasion, to be able to provide documented evidence of wellestablished risk assessment procedures when challenged to do so in court, was opening up a potential legal minefield. He gave delegates this initial advice: “When any organisation from, say, a small cleaning or catering company, to a large acute Trust, first tackles the issue of health and safety and risk assessment, the first thing to consider is to whom it owes a duty of care. Principally this will be the organisation’s direct employees, but the difficulty, given the number of, for example, NHS Trusts, who now contract out hard and soft FM services, can be determining just who these ‘employees’ might actually include.” For instance, he emphasised, should a health and safety case come to court, part-time employees, contractors, and even volunteer staff, could all be considered to be employees in the eyes of the law.