We wrote recently about how difficult it can be at the best of times to decide if you must or should report an incident to the HSE under RIDDOR. The Coronavirus pandemic has given rise to what, at times, seems to be a never-ending stream of hastily written guidance from the Government and associated agencies. There is no doubt that the constantly evolving nature of the crisis demands that this be the case, although this has all made the risk of reporting matters that you may not actually be required to report all the greater.
When one then goes on to consider that this guidance and regulatory framework is added to by commentary from all corners of the legal and safety community, finding the right path can become an ominous task. This article attempts to provide some signposts for those in the Nursing and Care Homes sector and to help in understanding what is required.
Even at such a busy and unprecedented time for them, Registered Providers must be (and keep) right up-to-date with the Government/World Health Organisation (WHO) guidance designed to ensure the safety of their residents, visitors and employees. Although the guidelines may not have the direct force of legal requirements, any attempt to meet legal requirements by some other means could run the risk of staff and public complaints, loss of confidence and regulatory scrutiny about why the guidance has not been followed to the letter.
All employers in the sector have legal duties under the Health and Safety at Work etc Act 1974 and separately, The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Pursuant to the former, the duty is to ensure, so far as is reasonably practicable, the health and safety of employees, residents, and members of the public affected by their activities. Pursuant to the latter, the duty is to provide safe care and treatment.
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (“RIDDOR”) has not been amended or altered since the pandemic. RIDDOR requires employers to report work-related accidents and diseases. In April 2020, the HSE issued guidance in relation to employers’ obligations to report Covid-19 cases under RIDDOR.
The guidance suggests that the starting point is that such cases are not reportable under RIDDOR. It states that a report must only be made when:
We have been helping companies to unravel what this means in particular cases and what they are and are not required to do. Already we have seen that this guidance can raise more questions, doubts and concern amongst employers when it comes to deciding whether reporting obligations are triggered. Arguably, the guidance is particularly ambiguous where employees have passed away as a result of Covid-19. On closer consideration, some have not required a report to have been made.
Turning to work-related fatalities, in practical terms, medical practitioners are unlikely to consider where the individual contracted Covid-19 and whether it was contracted during the course of employment. The guidance therefore raises a practical challenge, as most employees might be likely to have a diagnosis of Covid-19 but no confirmation as to where, how or when the virus had been contracted.
Whether there exists “reasonable evidence” that Covid-19 was caused as a result of exposure at work, will naturally require an assessment of the specific circumstances of each individual case. A number of factors will need to be considered, such as; was testing largely available? Or were other individuals (e.g. service users) exhibiting symptoms and if so when? What control measures had been adopted and what if any exposure did an individual have to Covid-19 either via diagnosed persons or nearby surfaces etc.
As a consequence, employers, particularly those in the Social Care sector, will need to consider if and at what stage their reporting duties are triggered. By way of example, is it when an individual is displaying symptoms? Or when there has been a positive test? Or when the individual is hospitalised?
In view of the considerations set out above, it might be that the guidance will result in over reporting of cases, as responsible employers seek to ensure that they are complying with their legal obligations. Getting to the right answer can be fiddly and time consuming at a time when you can least afford it on matters like these. Sometimes further enquiries will provide an answer and sometimes more detailed investigations might be needed, commissioned by lawyers under legal professional privilege.
Each case requires careful analysis and it will ultimately be a judgement call for the organisation concerned. We in the Keoghs Crime and Regulatory Team are, however, able to assist in scrutinizing each individual case to ensure that the right cases are reported. As always, there is a fine balance to be struck between being looking to be fully open and transparent and reporting when unnecessary; failing to report something you were required to report will, of course, have potentially serious consequences.
These are uniquely demanding times for us all. As a society, we are all hugely appreciative of the commitment of everybody working on the front line to fight this pandemic and protect our loved ones. Care and Nursing Home professionals are on that front line and we would like to help organisations, wherever possible, by ensuring compliance.
Rekha Sharma Associate - Crime & Regulatory team
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