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HSE and Public Safety - Intenal Consultation

Prior to publishing its November 2003 policy (now revised) in 2001 and 2002, the HSE produced two papers for the HSC

To download these papers in full, Click Below:
HSE Paper to the Board: November 2001 (word)
HSE Paper to the Board: October 2002 (PDF)

November 2001 Paper
The November 2001 paper sets out why the HSE considers a review is necessary:

8 There has been a developing appreciation of the broad scope of section 3 over time. HSE are now actively involved in regulating risks under section 3 which, some years ago, would not have attracted the attention of HSE e.g. patient issues in hospitals. There are a variety of reasons for this:
A growing perception by the public of s.3 HSWA’s potentially infinite application and increasing pressure on HSE to use section 3 for "public safety" issues which may only have a tenuous link to work activities and which may not be central to HSC’s strategic direction for health and safety;
The absence of more specific legislation or the lack of suitable enforcement powers leaving gaps which HSE finds itself under increasing pressure to pick up using section 3;
A reluctance by other enforcement bodies and authorities to take on section responsibilities, even though they may have the necessary expertise, and which might obviate the need for HSE to enforce section 3;
9
Increasing demands for criminal prosecutions when incidents involving public safety occur;
A need to act where there is serious and imminent danger or risk of serious or imminent danger and where it’s not possible to contact the other authority in time or there’s a gap in others’ legislation/enforcement powers;
Complaints about other enforcing authorities.
10 The additional pressures placed on HSE by the demands of section 3 in these circumstances give rise to certain dangers:
Given HSE’s resource constraints, the danger of resources being skewed away from Revitalising targets and other activities eg investigation of workplace accidents and prosecutions;
The danger of judicial review should adequate arrangements not be in place to deal with the enforcement of section 3 and ensuring public safety is adequately guaranteed;
A growing demand on HSE to act and enforce under section 3 even where more relevant legislation exists, particularly if there is no scope for criminal sanctions under that legislation.
11 These pressures to intervene are likely to increase and there is a need, given resource constraints, for HSE to address prioritisation of section 3 work. There are currently several significant section 3 boundary issues, some of which are proving resource intensive, including work on framing or amending demarcation agreements. In particular, HSE’s Field Operations Directorate has expressed some concern over the potential extent of HSE’s section 3 responsibilities. There is also concern from Policy Directorates because of pressure for the production of guidance etc and public involvement in "consumer" focussed safety issues e.g. safety of swimming pool users, participants of adventure activities, fairgrounds.
12 The section 3 review will consider the current situation and the potential for further HSE involvement e.g. the size of the problem and the amount of resources that are devoted to this work. As part of the review, and to aid possible decision making on prioritisation, HSE will consider cases where:
there are other authorities with enforcement powers eg air transport;
there are other bodies with responsibilities for ensuring safety but they have no enforcement powers e.g. Commission for Health Improvement, prison service;
there are no other authorities eg fairgrounds.
13 HSE will also investigate how much proactive and reactive resource is being put into this section 3 work.
14 HSE will also revisit the principles of the "Foot letter" and, in particular, the benefits that may attach to using consumer protection legislation, rather than section 3, to address the risks posed.

October 2002 Paper
The October 2002 paper summarised the problem for the HSE in the following manner:

"The broad scope of s.3 and uncertainties about our role mean that the demands on resources could become even greater particularly if HSE is seen as providing a stop-gap to fill either deficiencies in others’ legislation or the inability/failure of other authorities to address issues that we regard to be more properly their concern. In particular, there is a threat to Revitalising priorities, and/or of judicial review, if the current approach is unchanged."

It says that the current pressures on HSE’s enforcement of section 3 include:

The potential for HSE to be drawn into areas increasingly close to "clinical judgement" issues in patient care because of the lack of enforcement powers by others eg the Commission for Health Improvement (CHI) - and its intended replacement – the Commission for Healthcare, Audit and Inspection.
The need for HSE to intervene in circumstances where the workplace or work activity related element is rather tenuous or which we reactively enforce eg domestic electrical safety, risks to students from meningitis, falling trees, condition of fences and stiles, proposed siting of a drugs and alcohol unit next to a school, solid fuel/oil fires in domestic premises (because of our involvement in gas safety).
An increasing public desire for HSE to get involved in areas that previously were regarded as "voluntary risk" eg hazardous leisure pursuits.
An increasing public expectation that a regime will exist to punish individuals or bodies when things go wrong.
Our "fit" with other regulatory regimes that have a different enforcement rationale in achieving their aims eg Prisons Inspectorate rely on influencing the Home Office, CHI operate on a no blame investigatory approach, the General Medical Council have limited powers in the action they can take."

It states that in relation to resources:

"HSE’s Field Operations Directorate estimate some 38 staff years annually (excluding work-related road transport) were spent dealing with "public safety" issues and a further 25 staff years for domestic gas safety. This is, however, likely to be an underestimate and includes a significant amount of non-priority reactive topics."

It is concerned that the pressure from other Government departments is for the HSE to be increasingly involved in the regulation of public safety issues. The document states:

"Government more generally is not addressing this; rather some parts of Government are seeking to limit their role by replying on HSE’s enforcement powers (eg DTI and certain consumer safety issues such as the addition of radioactive substances to consumer goods). It is clear that HSE would have great difficulties in persuading other organisations that they should do some of the things we currently do under s.3 - the pressure is in the other direction."

The paper says that the HSE is curently considering the following options

What we can do in the immediate future to deal with the pressures on HSE in theenforcement of s.3. There is recognition that there is a need for greater prioritisation and the continued development of MoUs. However, greater prioritisation is leading HSE to state that we will only address matters of serious or imminent risk in certain areas – a position that can be difficult to explain and justify to members of the public.

What should we be aiming at for our future role in public safety? Public expectation of HSE is increasingly at odds with the fundamentals of our intended functions as envisaged by Robens, which recommended that HSE should not have all embracing responsibility for public safety.

There is a need to find ways to manage the mechanisms for agreeing demarcation issues and alternatives that HSE are considering include the possibility that Ministers or the Commission may give "directions" to HSC/E not to get involved in certain areas, or in setting priorities, further MoUs, etc.

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Page last updated on February 26, 2005