Posted By Jim O'Dwyer
Hi,

I'd appreciate advice concerning issuing Guidance/ Instructions to staff that may impinge on their right/duty in Common law to take a course of action by prohibiting it as an option, on safety grounds.

Examples would be:

In view of the well documented risks, advising retail store staff (including security guards and store dectectives):

1. Not to challenge suspected shoplifter(s) single handed
2. Not to chase after suspected shoplifters who run away when challenged


In view of the well documented risks of injury to self and others, advising care staff:

1. Not to attempt to arrest the fall of a patient who is falling
2. Not to single handedly attempt to lift a patient who has fallen down


In view of the well documented risks, advising care staff (including security guards and porters):

1. Not to attempt to physically restrain a violent patient single handed
2. Not to attempt to single handedly eject a trespasser
3. Not to attempt to forcibly disarm a person who is armed with a weapon


Employers have a duty to warn employees about risks that may affect them at work and an obligation to prohibit unsafe practice. So, it would be remiss of employers not to issue such guidance. Yet, at the same time, staff as citizens have duties in law which are accompanied by legal rights to do what they consider is reasonably necessary in the circumstances, which may include doing what their employer has prohibited them from doing.

So, is it lawful to prohibit the kind of conduct described above - or would it be an illegal?

I'm also interested to know whether or not, if an employee ignores the employers Safety Instructions and harm happens to them (i.e. the employee) is their employer's liability for the harm they suffer affected? (reduced?)

And, if the employee ignores the employer's Safety Instructions, could they be legitimately disciplined / sacked for Gross Misconduct if their action was not unlawful?

Best wishes,

Jim O'Dwyer

Posted By Raymond Rapp
Jim

You have asked a multitude of questions which could fill a thesis, never mind a discussion forum. Next time try 'bite size' chunks.

Unlike some other countries like the USA, here in the UK citizens are not legally bound to assist others in distress, unless it is part of their employment. What you are in need of is policies, risk assessments, guidance and training for staff, not legal definitions.

For a common law duty of care to exist there must be a number of correlations, most of which have little to do with your questions. It is probably better to discuss these matters, email me direct and I will provide you my phone number.

Regards

Ray

Posted By Andrew Rushton
Jim,

Go for the minimise risk of injury to any party approach. If saving someone from injury has a potential to cause injury to others, risk assess. Is there a way you can train instruct, or put other control measures in place to reduce the risk.

Where you can eliminate a risk to injury eliminate it. i.e violent shoplifter with a weapon - let them go. take a look at what the police do with high speed chases, where the risk to life is multiple and excessive, they back off.

Hope this helps.

Posted By Jim O'Dwyer
Thanks Andrew.

Does anyone know the legal position?

Best wishes,

Jim O'Dwyer

Posted By J Knight
There are two ways of looking at this. One is that if the prohibited action is allowed, what may well happen is a simple multiplication of the number of injured persons. In the case of a falling patient there is a high probability of injury to the person attempting to prevent the fall, and in failing to prevent the fall they will probably not succeed in preventing injury to the patient; two people hurt instead of one.

The other approach is that the duty of care to employees is the principal duty in HASAWA, protecting others is secondary.

I have experience of most of these questions (working as I do for a Healthcare Charity with 400 shops). We instruct staff in exactly the ways you suggest, and have never been criticised for this by enforcers, not has it ever been used as a reason for legal action, either criminal or civil.

When I started out in H&S I was working for a social care charity, and one of the first conclusions I reached was that trying to catch falling people was a significant cause of injury to staff. Telling them to let people fall (or if possible passively guiding them to the ground, which involves careful pre-positioning and good training) reduced injuries to staff and to service users,

John

Posted By J Knight
Hi Adrian,

I know you know your law, but I don't agree; experience supported by data is that failing to restrict staff's freedom of action in e.g. responding to shoplifters will increase the chance of injury to staff; as will encouraging or allowing staff to stop people falling, or asking employees to lift fallen people from the floor without using proper equipment. Training in fall prevention and passive guidance can go so far, but I have known workers off sick for months with injuries caused by trying to catch falling people.

We have a strict duty of care to staff; we cannot allow them to pursue unsafe options such as tackling shop-lifters or trying to catch falling people, any more than we can allow them to ascend scaffolding on the outside or ride on back-hoe buckets,

John

Posted By Adrian Watson
John,

I agree, that is why I advised that persons be trained to assess the situation and then take the necessary course of action. What is appropriate for one situation may not be appropriate for another!

The problems with hard and fast rules is that (1) there will be situations when they are not appropriate and (2) they remove the need for thought. Both of which are dangerous.

Wait to see the media response if a 5 stone, young girl with brittle bone disease falls out of bed and dies because a care-giver was instructed to let her fall! Conversely, see the media response if a care giver is hurt trying to stop a 30 stone person falling from bed.

Flexible, context based guidance and training needs to be given so that every-one is made safer without burdensome restrictions being put in place.

Regards Adrian

Posted By Jim O'Dwyer
Hi Adrian,

Thanks for your input.

I think you might have hit the nail on the head in the final line of your last post when you say "... providing that the injured person was provided with ...the necessary resources to work safely!

By the way, someone has emailed me with a link to an online .pdf document that details the "DECISION OF THE ADMINISTRATIVE LAW JUDGE in the case of LEON ARAGON, Complainant, vs. THE DEPARTMENT OF HUMAN SERVICES, COLORADO MENTAL HEALTH INSTITUTE AT PUEBL0, COLORADO".

The incident and the complaint is strikingly similar to the scenario we've been discussing and the outcome was that the "Complainant's appeal was dismissed with prejudice."

I know it's an "American" decision, but it would probably be the same decision here, don't you think?

Here's the URL:

http://www.colorado.gov/...isions/2003/2003B099.pdf

Maybe you could have a look and come back with your thoughts?

Best wishes,

Jim O'Dwyer

Posted By Jim O'Dwyer
Hi Guys,

Here's my reasoning in favour of strictly prohibiting staff from single handedly attempting to physically restrain a patient.


COMPLYING WITH LEGAL OBLIGATIONS

The organisation has a legal duty to prevent staff engaging in unsafe practice which presents a risk of harm to either themselves or others.

Since it it well recognised that attempting to restrain another person single handedly greatly increases the risk of harm occurring, the organisation has a clear duty to - in everyone's ineterests - prevent the unsafe practice from taking place including by issuing the Instruction i.e. "Not to attempt to physically restrain a violent patient single handed". The employer would be open to criticism if they didn't.

Some organisations add something like "unless it's an emergency" on to the end of the Instruction. But, this is not helpful - as it 'permits' the unsafe practice. (If physical restraint becomes necessary it is an emergency!)


NOT RESTRICTING EMPLOYEES' LEGAL RIGHTS

Instructions to staff should clarify the employer's wishes and the evidence /justification for banning single person restraint.

It needs to be explained to staff that they may experience situations in which the law may authorise them to attempt to physically restrain a person on their own and that the Safety Instruction (and the evidence basis for its existence) is something which could not be ignored when considering whether or not to attempt to restrain a person single handedly. In other words, if they ever went ahead against the advice they would need to be able to justify taking the risks of doing so and this might be difficult given the solid reasoning behind the existence of the Instruction.


GETTING EMPLOYEES TO COMPLY

Although they may have a legal right to attempt to restrain a patient single handedly, employees who have been given the Instruction (and the justification for it) could be considered to be 'volunteering to take the risks' if they decide to ignore the Instruction - and this could affect the amount of compensation they may be entitled to in the event that they suffer injury.

The Law Reform (Contributory Negligence) Act 1945 provides that:

"Where any person suffers damage as the result of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage".

If this was made clear to employees it would be likely to result in much stricter adherence to the rules!

Also, S.14 Management of Health and Safety Regulations 1999, requires employees to co-operate with the employer and others to meet statutory requirements (i.e. compliance with guidance, Codes of Practice, Instructions, Safety Procedures, Training, etc.)

This means that if the employee ignores the Safety Instruction, regardless of whether they have acted unlawfully in doing so, they would be in breach of this Statutory duty, which must surely render them sackable. Mustn't it?


OTHER IMPLICATIONS

In clarifying expectations of employees, the employer will be recognising that it takes more than one person to safely effect physical restraint. This will need to be reflected in appropriate manning levels or else physical restraint will not be an option available to staff. In certain healthcare settings, where behaviour which warrants physical restraint is prevalent (e.g. A&Es and Mental Health settings), the NHS Trust, as an employer, may be expected to have the necessary arrangements in place - and be operating outside the law if they fail to ensure that they are.

Lord Widgery's comments in the case of R v. Bracknell J.J, ex parte Griffiths (1976) p318 E-G made this clear. Lord Widgery said that staff can and indeed must 'ensure that control is exercised over the patients and can and indeed must, use reasonable force’.


WHAT DO YOU THINK?

I look forward to your comments.


Best wishes,

Jim O'Dwyer

Posted By Jim O'Dwyer
Hi Adrian,

Could we reach agreement then by substituting either the word “could” or “may” for “must surely”?

Best wishes,

Jim O’Dwyer

Posted By Jim O'Dwyer
Hi Adrian,

I hear what you're saying about Employment Tribunals and Courts expecting employers to look at each case on its own facts and that failure to do so will invariably lead to damages being awarded for unlawful dismissal and I'd be happy to leave it as: ..."may" be treated as Gross Misconduct and result in the employee's dismissal.

However, given the significant risk of serious adverse outcomes resulting from single person restraint and the extensive evidence base supporting the clear instruction (i.e. not to attempt to single handedly restrain a person) - I can't think of any circumstances that would justify an employee ignoring it.

Can you? (Or, anyone else?)

Going on from there, do you think it would help to dissuade employees from disregarding the Safety Instruction by also cautioning them that if they ignore it and someone else gets harmed, they could be prosecuted by the employer for Breach of Statutory Duty?

As I understand it, the 2003 amendments to the Management of Health and Safety at Work Regs (MHSWR) provided this option to employers in circumstances where an employee's failure to comply with safety protocols has resulted in harm occurring to someone else.

I'm pretty sure that, whilst the 2006 amendments to the MHSWR removed the possibility of actions being brought by injured third parties against employees for breach of their statutoty duty, they didn't affect the employer's right of action against employees for breach of statutory duty.

I also think that this was the HSE's intention.

S.2 of the HSE's Regulatory Impact Assessment (RIA) issued at the time stated:

"The underlying policy intention of HSC/E in placing a civil liability on employees for a breach of their duties under the MHSWR was to promote employee responsibility and to ensure that liability was placed on the person who caused the breach."

Also, the HSE's Consultation letter, dated 24 February 2005, at (6. on page 1) states "Some of the original consultees supported the proposal, contending that it would capture those cases where accidents resulted from employees failing to follow control measures which would not necessarily be pursued by the enforcing authorities."


You can view the HSE's Regulatory Impact Assessment (RIA) at this URL:

http://www.hse.gov.uk/co...letters/manregsasses.pdf


You can view the HSE's Consultation letter at this URL:

http://www.hse.gov.uk/consult/letters/manregs.pdf


Best wishes,

Jim O'Dwyer

Posted By Stupendous Man
Jim,

Can you clarify the following statement you have made:

The organisation has a legal duty to prevent staff engaging in unsafe practice which presents a risk of harm to either themselves or others.

I was not aware of such a legal requirement in the UK.

Posted By Jim O'Dwyer
Hi,

Does anyone have an answer to the question I posed on Wednesday, 21 February 2007 at 11:46?

"...do you think it would help to dissuade employees from disregarding the Safety Instruction by also cautioning them that if they ignore it and someone else gets harmed, they could be prosecuted by the employer for Breach of Statutory Duty?"

Best wishes,

Jim O'Dwyer

Posted By Jim O'Dwyer
Hi John,

I hear what you say, but as I understand it, the 2003 amendments to the Management of Health and Safety at Work Regs (MHSWR) provided this option to employers in circumstances where an employee's failure to comply with safety protocols has resulted in harm occurring to someone else.

Can I ask you to check out the references I provided and let me know whether you agree.

Best wishes,

Jim O'Dwyer

Posted By Jim O'Dwyer
Hi John,

I've just re-read the 2006 amendments.

www.opsi.gov.uk/si/si2006/uksi_20060438_en.pdf

As far as I can tell, the 2006 amendments simply removed the possibility of third parties suing employees for any breach of duty arising under the MHSWR and they did not alter or withdraw the option provided in the 2003 amendments for employers to bring actions against employees for breach of their duties under the 1999 Regulations.

So, whilst you are correct that employers can't prosecute employees (i.e. in the criminal courts), I still think that they can bring civil actions against employees for breach of statutory duty under the 1999 Regulations.

And, if that is the case, would it help to persuade employees against ignoring safety instructions if they were to be told about it?

Best wishes,

Jim O'Dwyer

Posted By Jim O'Dwyer
Hi Adrian,

If an employee disregarded a safety instruction and in so doing contributed in a significant way to harm happening to someone else and that injured party sued the employer for compensation, wouldn't that be the 'loss' needed to empower the employer to take civil action against the employee based on breach of statutory duty?

Best wishes,

Jim O'Dwyer