Resource management – court case highlights occupational health grey area

A healthcare provider has recently been fined more than half-a-million pounds because its internal occupational health service was not deemed to be meeting required standards. But just what constitutes an “adequate” OH service remains something of a grey area, as Ashleigh Wight reports.

As most occupational health professionals will be only too well aware, employers are required to have an appropriate level of resource to ensure the protection of the health and safety of their workforce under The Management of Health & Safety at Work Regulations 1999. And this is a regulation that, if not complied with, can lead to fines running into many thousands of pounds.

It’s not, of course, mandatory that employers use occupational health expertise to ensure they’re meeting their duties and responsibilities under the regulations.

But for employers that do decide OH support is necessary to manage the health, safety and wellbeing risks they face, an unusual case last October has highlighted the lack of guidance currently available in terms of what should be deemed an “adequate” level of provision to ensure an organisation can show it is fulfilling its responsibilities under the regulations.

Bedford-based healthcare provider Ramsay Health Care (UK) Operations (RHC) was fined £550,000 and ordered to pay thousands in costs after the HSE determined its internal OH service did not meet the required standards.

Lack of expert knowledge

The issues began when its OH service was brought in-house from an external provider in 2013. RHC employed a wellbeing coordinator to run the service, and while this person had a master’s degree in occupational health, their background was in physiotherapy and they had never worked in an OH department.

The rest of the team comprised people with broad healthcare qualifications, including health and safety, sports science and rehabilitation and speech therapy. Their OH experience was therefore limited. One temporary, and often part-time, agency OH nurse was employed by the department, but had to look after approximately 4,500 RHC employees. The agency nurse had no access to an OH doctor.

An employee raised concerns to HSE about how the OH service was run and the level of provision available. An investigation determined that RHC had failed to appoint a sufficient number of OH professionals for the service to fulfil its responsibilities, which compromised the health of its staff.

As a result of inadequate health surveillance, one member of staff at a site in Boston, Lincolnshire was diagnosed with operational dermatitis, which had spread from her hands to her arms and legs.

The HSE caseworker involved in the investigation has told Occupational Health & Wellbeing that the inadequacy of RHC’s service exposed employees and those it worked with to health and safety risks.

“Staffing at RHC was inadequate both in numbers, organisation and qualifications. The lack of adequate OH service meant that RHC was not complying with relevant legislation including, but not limited to, the Health and Safety (Sharp Instruments in Healthcare) Regulations 2013 and the Control of Substances Hazardous to Health Regulations 2002,” the caseworker said.

The shortcomings in the service clearly raised red flags for HSE. But what exactly does an “adequate” OH service look like in this context if there is no specific definition?

An HSE spokesperson says: “HSE would expect an employer to assess the risk (having regard to the size of the undertaking, the risks to which their employees are exposed and the distribution of those risks throughout the undertaking) to determine the appropriate OH provision.

“The Association of National Health Occupational Physicians (ANHOP) guidelines for staffing an occupational health department in the NHS – Assessing the Occupational Health Manpower Levels for NHS Trusts, 1/7/1999 – can be used as a benchmark.”

‘Appropriate’ levels of resource

According to the ANHOP guidelines, the appropriate level of OH resource in an NHS trust will be influenced by factors including the number and location of sites in relation to where the service is based, the number of health promotion activities the service provides and the amount of training and advisory sessions it is responsible for, among others.

Again, while this information gives organisations some idea of what their OH service is expected to deliver, it still very much remains open to interpretation.

One OH nurse working in the NHS, who wished to remain anonymous, told OH&W that she believed her department was under-staffed, despite being told they have enough nursing hours.

“Recently management have been taking control of our diaries and even stopping us attending meetings such as health and safety and infection control because they believe management referrals to be priority,” the nurse said.

“I have raised [that] I do not think the service is safe and been told to report evidence of this. I haven’t any [evidence] because we have managed so far, but we are struggling. I think the NHS could have a safe staffing level set but perhaps it’s more difficult in the private sector.”

The ANHOP guidance states that a small NHS trust with around 750 employees should have one clinical session with an occupational physician a week, with one additional weekly session per 1,000 additional employees. They should also have 1-1.25 full-time equivalent OH nurse advisers per 750 staff (0.75-1 FTE per every 1,000 additional employees).

While this is a helpful basis for NHS trusts to determine if their service is sufficient, there is no similar guidance for the private sector.

As a starting point, the HSE advises that employers undertake a risk assessment and ensure “competent” persons are appointed – a resource that RHC lacked.

A competent service in this context is either nurse-led or doctor-led, the HSE spokesperson explains. Competent nurses will be registered with the Nursing and Midwifery Council – ideally on Part 3 of the register – and will hold an additional OH qualification such as an OH degree or diploma. They should also have experience working in OH as an adviser.

Understanding ‘competent’

A doctor-led service requires a doctor currently registered with the General Medical Council, who is on the specialist occupational medicine register. Again, past OH experience is essential to be considered a “competent” person.

“Competence can be described as a combination of training, skills, experience and knowledge that a person has and their ability to perform a task safely,” the spokesperson adds.

The consequences for being deemed to have neglected employee health and safety through inadequate OH resource could potentially threaten a business’s ability to continue operating – especially since the sentencing guidelines for health and safety breaches were given more teeth in 2016 – so careful consideration is important.

If found in breach of health and safety law, a court will take into consideration the firm’s level of culpability and harm caused, as well as their annual turnover. Companies with a turnover of £50m or more could face fines up to £10m, while individuals could receive two years’ imprisonment and a fine.

But, rather than fine organisations that are attempting to provide an OH service to their staff, albeit inadequately, should the HSE be instead focusing its efforts on getting businesses to invest in OH in the first place and encouraging businesses to see the benefits it can bring?

Indeed, the minister for disabled people, health and work, Sarah Newton, recently indicated that the government was “not ruling out” the idea of making it compulsory for an employer to offer an occupational health service – so wouldn’t some firm guidance make sense?

“I think it would be better for the HSE to focus on the discharging of the employer’s responsibilities under existing legislation,” suggests Andy Paterson, an independent OH adviser. “That’s the offence here really. Inadequate OH provision is a factor, but in theory you could have ‘adequate’ OH [provision] and still be failing to discharge your responsibilities.”

One OH professional says some firm guidance would help support OH departments in putting the case forward for more resources, but “companies are cutting back and health and wellbeing seems to be taking a hit”.

Sue Waller, an occupational health and safety manager, believes that firm guidance from the HSE would mean that the government may have to invest in training more OH personnel – something that would arguably solve resourcing issues, but would take time.

“The understanding of OH is so poor within the HSE and the workplace generally,” she explains. “The government estimating, or even taking the requirements of the HSE legal requirements and overlaying them onto businesses, will fall short, as agreement from government to allocate a number of OH practitioners required will immediately require more to be trained.

“The flags are there with UK sickness absences sky high – you would think that the sense would be to endorse, support and implement OH services as a vehicle to act as a preventative tool in workplace to assist managers?”

While it’s clear that employers would benefit from more guidance around how a safe service is to be resourced, the consensus is the HSE should be careful not to over-burden businesses. Instead, it should focus on encouraging organisations to see the value properly-run OH provision can bring.

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