Occupational health’s role in preparing servicemen and women for combat is in question after a recent Supreme Court ruling. Nic Paton reports.
Battlefields and combat zones are, by their very definition, dangerous places. Those working in them inevitably operate at a high risk of personal injury, or worse, as we have seen too tragically in Afghanistan and Iraq. As such, and despite a tradition of working alongside the military, it has long been recognised that there will be times when occupational health in the armed forces has little option but to take a back-seat to operational priorities, even if only temporarily.
Impact on OH of arduous environment
That’s not to say occupational health and occupational medicine do not matter in today’s forces, far from it. Occupational medicine has long been an important speciality in all the armed services. In a physically and psychologically arduous environment, maintaining the health and fighting ability of personnel on the ground is vital. Equally, occupational health (OH) has an important role to play, both in terms of managing or overseeing the day-to-day health of personnel on base or in the training environment, but also in the input it can offer supporting injured troops back to physical or mental fitness and in helping to rehabilitate them back into military or civilian life.
While the MoD has a legal obligation to ensure the lives of troops are properly safeguarded when they are on a British base, that obligation does not apply when they step off the base, for example when they are in transit”
Equality and Human Rights Commission
The role and extent of OH’s involvement in the armed services arena was highlighted in June in a ruling by the UK Supreme Court, which overturned controversial High Court and Court of Appeal judgments that soldiers on the battlefield should be protected by the Human Rights Act (HRA).
Relevant case law
The ruling focused on whether a British soldier on military service in Iraq is subject to UK jurisdiction and covered by human rights laws, not only when on a UK military base or hospital. It was prompted by the death of Private Jason Smith in August 2003 in Iraq while serving with the Territorial Army.
Smith died of heatstroke after repeatedly telling medical staff he was feeling unwell. He reported sick on 9 August and four days later was found lying face down and short of breath; within an hour he suffered a cardiac arrest. The case, brought by his mother Catherine, argued the inquest into her son’s death should have investigated the circumstances in which he died and why he died, not just how.
An earlier High Court ruling into the case had, as well as making a judgment on the inquest issue, concluded that the Human Rights Act applied to all armed forces personnel serving outside the UK, regardless of whether the death took place on an army base. The Ministry of Defence (MoD) challenged this decision at the Court of Appeal, which upheld the High Court’s ruling and led to a further appeal by the MoD to the Supreme Court. This ruling, in June, confirmed the MoD still needed to hold a proper inquest into the case, but back-tracked on the issue of the Human Rights Act.
This, the Equality and Human Rights Commission (EHRC) has argued, means that “while the MoD has a legal obligation to ensure the lives of troops are properly safeguarded when they are on a British base, that obligation does not apply when they step off the base, for example when they are in transit”.
Although this is not the end of the matter legally, for the European Court of Human Rights is due to have the final word, EHRC group legal director John Wadham argues: “Extending human rights protection is not about individual decisions in the heat of battle but ensuring that when we send soldiers to war, they are properly prepared, kitted out correctly and with equipment fit for combat.”
So, where does this leave OH? If you were to compare the responsibilities of OH practitioners towards servicemen to other sectors you might reasonably ask to what extent is it realistic to screen out recruits for their susceptibility to conditions such as heat exhaustion at the recruitment stage?
Anyone on combat operations knows they have to be prepared to put their life on the line. But the question a case like this raises is ‘are they prepared to look after me?'”
Dr Richard Preece
Once in service, is it possible to differentiate between occupational health and safety risks and the risks of combat? In a restaurant kitchen, for example, an employer should be on notice if an employee repeatedly complains of feeling unwell because of the heat, but can the same rule be applied to a military context where troops are facing a range of other extreme hazards?
If the Supreme Court ruling were to be overturned, would it lead to a huge number of complaints from servicemen and women relating to conditions such as post-traumatic stress disorder?
Psychological contract with the employer
According to Occupational Health columnist and consultant occupational physician Dr Richard Preece, the ruling potentially raises a range of questions that the profession might be wise to consider. There could be more debate about how (or indeed if) the health needs of people in an armed conflict situation can be supported.
“Then there is also what you might term the psychological contract issue. Anyone on combat operations knows they have to be prepared to put their life on the line. But the question a case like this raises is ‘are they prepared to look after me?’,” Preece suggests.
“Occupational health ought to have a view on these health issues, if nothing else,” he adds.
Nevertheless, according to Greta Thornbory, Occupational Health‘s continuing professional development editor and a former major in the Territorial Army, it has to be recognised the army has, over the years, done a lot to improve the health and safety of soldiers. “A huge amount of training goes on. But once you get into a war zone, how can employers be responsible for someone, assuming they have been adequately trained?” she asks.
“It is arguably not so much about good OH as about good line management skills. If you are in a situation where people are being fired on and someone has heat exhaustion, there is not much you can do about it. These are split-second and difficult decisions. You can only train people to do the best they can in the situation.
“It all hangs on the training servicemen and women get before they go into combat. So it may be that OH needs to be looking more at its training role and needs to be taking more of an active role in that. You cannot legislate for everything, nor can you stop everything happening,” she adds.
You can only train people to do the best they can in the situation'”
Similarly, Robert Dunn, a TA officer for 25 years and senior OH adviser at the University of Oxford, argues that legislation, such as the HRA, has questionable value for the armed services. “If troops are having to be looking over their shoulders after everything in case it is critical later in a civilian court of law, overseen by people who will have little or no understanding of what is expected of troops in these situations and how decisions have to be made, then they are not going to be effective,” he says.
OH should ensure a proactive approach
“OH can have an input into military life and a lot of work has been done regarding creating a tri-service medical service. There is always a role for OH in trying to ensure a proactive approach is taken and making sure troops are not doing something that is going to affect their health.
“There is a role for OH, but it is going to be limited and dictated by the operational perspective. It may be things such as ensuring vaccinations are up-to-date before soldiers go to war, for example.
“A lot of progress has been made over the past few decades and, when it comes to occupational health, there is a lot practitioners can do to ensure soldiers are in the best possible shape,” he adds.
Supreme Court ruling: having your say
Whatever the merits of the Supreme Court’s ruling on Private Jason Smith, an anonymous post about it on the OH JISCMAIL online forum certainly caused a stir.
The post in June by Aminot Goodenough argued that those with responsibilities including the health and wellbeing of servicemen and women would now “only need to care about these matters part time”.
The post added: “This means that these men and women who, we are told, are in Afghanistan and Iraq being killed to protect our right to life, freedom from torture, family life and privacy, do not themselves benefit from these rights once they step outside base. If a soldier dies from heat exhaustion, becomes deaf while firing weapons away from base, damages his feet from ill-fitting boots worn away from base, or suffers from PTSD as a result of events that occurred outside base, then the employer will not have to be held to account. And we thought that Crown immunity disappeared two decades ago.”
The post led to a storm of counter-posts, with users of the site accusing Goodenough of subverting the main use of the site – the sharing of OH-based information and advice – with a post that was too “political”.
There was also criticism that Goodenough was posting anonymously, calls for him or her to be removed from the site, worries that “you and your profferings [sic] will taint us all as a profession for ages” and, as one poster put it: “If whoever you are was serving in the forces (or ex-member) then they would realise that today’s army is a lot more liberal-minded and, believe me when I say, that there are sooo [sic] many human rights now that even the poor little hard done to soldiers think we have gone overboard.”