|
HSE's
New Guidance to Inspectors
- Feb 2005
In HSE's new policy, inspectors are given more discretion
as to when they can investigate deaths, injuries and
other public safety complaints - but it does remain
tighter than the pre-Nov 2003 policy.
The
new policy states that
| 4 |
In the areas covered by the guidance listed
in Appendix 1, HSE will generally not start
to investigate injuries to non-employees,
or complaints about risks to non-employees. However,
it may be appropriate to do so where initial
enquiries, or information from other sources,
indicate that a breach of section 3 HSWA was the
probable cause of, or a significant contributory
factor to, the injury or risk complained of, and:
- there was or is a high level of risk or
- HSE needs to act/investigate in the interests
of justice. |
| 5 |
In
deciding whether the criteria above are met, relevant
HSE staff should consider all available and
relevant material, including any initial information
and material obtained by other relevant investigatory
bodies, and make a reasoned judgement, having
regard to the considerations set out in paragraph
5 of the HSC policy ... . Where, in the
event of a death, the decision is not to investigate,
the reason for this conclusion should be recorded.
It may also be appropriate to record decisions
in the event of certain incidents involving injury;
this should be done in accordance with operational
instructions. Because of the Government’s
responsibilities under the Human Rights Act 1998
in relation to a death where agents of the state
are, or may be involved, HSE like any other authorities
involved, may need to exercise its functions in
a way that fulfils the requirement of an independent
public investigation. |
Although
the new policy indicates that there will be an assumption
that it will not investigate - i.e. "HSE will
generally not start to investigate injuries to non-employees
or complaints about risks to non-employee" -
this is a distinct change from the November 2003 policy
which stated that no investigation would take place
unless all of three conditions applied. These
conditions were:
| - |
we
are provided with a sufficient indication that
a breach of s.3 HSWA was the probable cause of,
or a significant contributory factor to, the injury
or risk complained of; |
| - |
there
is a high level of risk or HSE needs to act/investigate
in the interests of justice; |
| - |
there
is no other, more appropriate, regulatory body
to deal with it. |
Now
the HSE's policy says that "it may be appropriate"
to investigate where:
| - |
initial
enquiries, or information from other sources,
indicate that a breach of section 3 HSWA was the
probable cause of, or a significant contributory
factor to, the injury or risk complained of, and: |
| - |
there
was or is a high level of risk or
HSE needs to act/investigate in the interests
of justice. |
This
implies that before making a decision 'initial inquiries'
should be made by the HSE to determine whether or
not a breach of section 3 was the praobble cause or
significant contributory factor to the injury or risk,
and the HSE should not wait until is to is provided
with this information.
In
addition, para 5 of the HSC policy makes it clear
that the HSE must take into account the enforcement
powers of any another regulatory body which has some
involvement in regulating the relevant activity, before
deciding to leave the investigation to this other
body.
It
should be noted that in the new HSC Policy Statement,
it is stated that if
"initial
enquiries, or information from other sources, may
indicate that a breach of section 3 was or is the
probable cause of, or a significant contributory
factor to, the injury or risk complained of ...
HSE and other enforcing authorities should generally
consider investigating it, if one of the other
two conditions apply." (emphasis added)
The
words "should generally consider" are more
mandatory than the words "may be appropriate".
Para
5 of HSC Policy Statement
The HSC Policy Statement, says that where other state
bodies have an interest in the regulation of a particular
activity, in deciding "whether it is suitable
for the [HSE or Local Authorities] to take the lead
on an investigation, the following principles should
be taken into account.
| - |
Effectiveness:
Which authority is best equipped, including appropriate
powers, to investigate the alleged risks? |
| - |
Capability:
is the other body capable of ensuring public safety?
Does it have those enforcement powers necessary
to do so? |
| - |
Health
and safety expertise: Which body knows most
about the risks concerned and the effective control
measures? |
| - |
Economy:
Is either body already inspecting/visiting the
premises or activity in question? Can duplication
of visits be avoided? |
| - |
Efficiency:
Is health and safety enforcing authority involvement
a good use of resources when considered against
the scale of risk or level of public concern?
|
Back
|
