Be on the safe side

The purpose of the Health and Safety (Offences) Act 2008 is to “punish the criminally negligent who put life and limb in danger in the workplace, and to deter those who are tempted to cut costs by breaking the law” – Keith Hill MP.

Background
The Health and Safety (Offences) Act came into force 16 January 2009. Although this act has received very little media attention, it makes substantial amendments to the landscape of health and safety law, including the health sector, by introducing tougher penalties for existing health and safety offences. In particular, the threat of long term imprisonment for individuals involved in a breach of health and safety law within Trusts, hospitals or other health facilities.

New proposals
The act amends section 33 of the Health and Safety At Work etc Act 1974 (“HSWA”) in three ways:

1. Raising the maximum fine that may be imposed by the Magistrates’ courts to £20,000 for most offences. The previous maximum fine that Magistrates could impose was for certain offences was £5,000 for breach of a health and safety regulations made under the HSWA. The act increases the maximum fine in the Magistrates’ court to £20,000 for all offences and allows the Crown Court to impose  unlimited fines for some breaches of health and safety regulations, and most offences under the HSWA.
2. Making a prison sentence an option for most health and safety offences in the Magistrates or Crown Court. This is a major change in health and safety law. Previously only one health and safety offence could lead to a potential prison sentence for an individual. However, under the act, all offences (with only four minor exceptions) will potentially attract a prison sentence from the Magistrates’ or the Crown Courts. 
3. Making certain offences triable in the Magistrates Court or the Crown Court. This  change aims to increase the flexibility of the court system by allowing more offences to be heard by either court.

Implications of changes
The act creates the threat of imprisonment for all employees who may have contributed to the offence by their consent, connivance or neglect.
    
It will, however, only be in the most serious (‘public outrage’) cases that a custodial sentence will be imposed. These will include cases where:

• serious neglect of an individual leads to major injury or a death
• there has been reckless disregard for health and safety requirements and/or the risk of harm 
• repeated breaches which cause significant risks to occur or where there has been persistent and significant non compliance 
• false information, in regard to enforcement of health and safety, is wilfully supplied by an individual 
• there have been serious risks that have been deliberately created to increase profit.

Uncertainty remains, however, on how this will ‘play out’ in practice and there is no clear guidance as to which individuals will be particularly at risk of imprisonment by virtue of their positions in Trusts or health sector businesses. This confusion is likely to result in many individuals being prosecuted and appearing before courts with a real threat of imprisonment looming over their heads. Armed with the threat of prison sentences, we can expect more in depth HSE and Police investigations leading to more intrusion into individual employees’ lives.
    
Furthermore, while there is no imprisonment penalty under the Corporate Manslaughter and Corporate Homicide Act 2007, prosecutions under traditional health and safety charges can be brought alongside prosecutions under the Corporate Manslaughter Act. This leaves open the possibility of a company or Trust being convicted of corporate manslaughter, and an individual director or senior manager being convicted under a related health and safety offence and subsequently imprisoned. However, to the untrained eye this will appear as if the individual has been imprisoned for corporate manslaughter.

Conclusion
The health sector will be affected more than anyone by the new proposals; health and safety breaches in this sector are likely to have much more serious, high profile consequences. We are already seeing an increase in Police and HSE led investigations into incidents in all areas of the health sector, from acute trusts to care homes. Health and safety policies should be updated and these important changes communicated to all employees.