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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:
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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:
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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; |
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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; |
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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; |
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Increasing
demands for criminal prosecutions when incidents
involving public safety occur; |
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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; |
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Complaints
about other enforcing authorities. |
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The
additional pressures placed on HSE by the demands
of section 3 in these circumstances give rise
to certain dangers:
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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; |
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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; |
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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. |
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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. |
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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:
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there
are other authorities with enforcement powers
eg air transport; |
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there
are other bodies with responsibilities for
ensuring safety but they have no enforcement
powers e.g. Commission for Health Improvement,
prison service; |
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there
are no other authorities eg fairgrounds. |
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HSE
will also investigate how much proactive and reactive
resource is being put into this section 3 work. |
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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:
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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. |
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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). |
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An
increasing public desire for HSE to get involved
in areas that previously were regarded as "voluntary
risk" eg hazardous leisure pursuits. |
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An
increasing public expectation that a regime will
exist to punish individuals or bodies when things
go wrong. |
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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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