Tuesday, January 15, 2008

Corporate manslaughter - homicide

I attended a very interesting talk today given by John Dyne from Dyne Solicitors

The Corporate Manslaughter and Corporate Homicide Act 2007 is due to come into force on 6 April 2008. It will mean that companies and organisations can be found guilty of corporate manslaughter if its activities are managed or organised by its senior managers in such a way that
1. causes a person’s death, and
2. amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

The offence will be Corporate Manslaughter in England, Wales and Northern Ireland and Corporate Homicide in Scotland.

It will lead to prosecutions of companies where gross deficiencies in management lead to fatalities. The penalties will include

1. Unlimited fines
2. Remedial orders - the court can tell the company how to improve systems etc. (this seems to overlap with HSE's remit to a certain extent)
3. Publicity orders - not entirely clear but it could require companies to advertise the fact they have been prosecuted. This may be in the paper or even posters at company sites.

John suggests that to avoid prosecution companies need to:
1. Determine where health and safety management responsibilities lie
2. Determine how responsibilities are delegated and monitored
3. Ensure all senior managers are in a position to control risks
4. Increase health and safety training for senior management
5. Review policies
6. Maintain constant review
7. Consult with employees and give them the opportunity to raise issues
8. Ensure they can demonstrate correct attitudes, policies and systems.

John made the point that an investigation would involved interviewing employees. They may say a lot of things about the company that management may not know themselves before the event. Management can no longer afford to keep their head in the sand as the defence of ignorance will not apply.

The introduction of the act will make organisations liable for Corporate Manslaughter if a fatality results from the way in which its activities are managed or organised. This approach is not confined to a particular level of management within an organisation. The test considers how an activity was managed within the organisation as a whole. However, it will not be possible to convict an organisation unless a substantial part of the organisation’s failure lay at a senior management level.
Corporate manslaughter will continue to be an extremely serious offence, reserved for the very worst cases of corporate mismanagement leading to death. The offence is concerned with the way in which an organisation’s activities were managed or organised. Under this test, courts will look at management systems and practices across the organisation, and whether an adequate standard of care was applied to the fatal activity. Juries will be required to consider the extent to which an organisation was in breach of health and safety requirements, and how serious those failings were. They will also be able to consider wider cultural issues within the organisation, such as attitudes or practices that tolerated health and safety breaches.

The threshold for the offence is gross negligence. The way in which activities were managed or organised must have fallen far below what could reasonably have been expected.

More information is available at the Ministry of Justice website

Andy Brazier

Tuesday, January 08, 2008

Using consultants

Just discovered "HSE statement to the external providers of health and safety assistance" on HSE website

It explains, very briefly, the duties of consultants and other people who provide advice to companies regarding health and safety. It say "You can help employers to manage risk sensibly, ie, focussing on reducing real risks, both those which arise more often and those with serious consequences. As the provider you must be competent, give a good quality service and deliver help that is fit for purpose."

In general terms advice needs to be

1. Correct
2. Tailored
3. Sensible

I think this is really useful. It appears that some consultants concentrate on number 1, which results in masses of generic paperwork. This rarely, in my opinion, helps the client.

Andy Brazier

Medical negligence due to lack of NHS funds

Negligence worries - Article by Ken Thomas (specialist medical negligence lawyer with South Wales solicitors Harding Evans) writing in the Western Mail on 7 January 2008

Ken says that in the course of his work as a medical negligence lawyer he routinely speaks to medical experts. Over the years, many have hinted strongly, or have said – sometimes quite bluntly and expressly – that medical errors can in part be attributed to lack of money in the NHS. Some of those errors can be gross and even fatal.

But is lack of financial resources a root cause of clinical negligence? Ken thinks it is fair to say that it may well be a factor in some medical mistakes. However, lack of resources is rarely, if ever put forward as an outright excuse or explanation for a failure of care. Put simply, lack of money would not be an attractive defence in court.

Ken makes the point that even in a well-funded healthcare system, mistakes will occur. But over-stretched resources and under-staffed teams cannot help in this regard.

My opinion is that an organisation the size of the NHS can not say they don't have resources. They may not have enough to do everything they want to, but that is different. It is not a lack of resources that cause errors, but it may well be poor prioritisation or organisation.

It is probably quite correct for the NHS to say they would like more money, but that will always be the case. I am pretty sure there is a lot of waste in the system at present, and reducing this should be a priority. I think the NHS can learn a lot from other industries, but they seem unable or unwilling to do this to any great extent.

Andy Brazier

Thursday, January 03, 2008

Human factor investigations

Presentation by John Chappelow from his website

John describes a taxonomy that he uses in training non-human factors specialists on accident investigation courses. Once a narrative description of an incident has been
broken down into discrete events, each event is examined to determine the type of error involved according to a simple classification based on the cognitive elements of any task cycle. They are:

1. Perception,
2. Intention,
3. Action.

This is achieved by asking questions as follows.

1. Did you perceive the situation correctly? If no, was it
a. Detection failure
I didn’t see it
I didn’t hear it
I’m sure it was green when I looked
It appeared to be locked when I checked
b. Misjudgement
The gap looked big enough
It didn’t seem to be going that fast
c. Communication failure
I thought he said…

2. Were your intentions appropriate?
a. Inappropriate model
I hadn’t appreciated that…
I obviously misunderstood what was required
In retrospect, the briefing could have been clearer
Suddenly, the plan went pear-shaped
b. Inappropriate evaluation of risk
I saw a simple way to solve the problem
We thought it would work
To save time, I used a different tool/method
We always do it this way on this unit
The laid down procedure takes too long
c. Responsibility management
I thought someone else would…
d. Malicious intent

3. Did you do what you intended to do?
a. Lapse
I forgot to…
b. Slip
I intended to do A but did B instead
c. Skill
I applied too much force
d. Response time
I was too slow/too quick

According to John "this approach has proved robust and easy to use, and, importantly, it can facilitate investigation of possible causal factors by identifying the more likely candidates."

Andy Brazier

Nitrogen in plane emergency air supply

'Fatal' gas pumped into Qantas jet - article in The Age Australia on 16 December 2007 by Matthew Benns.

POTENTIALLY fatal gas being pumped into a passenger jet's emergency oxygen tanks in Australia has sparked a worldwide safety investigation. The Australian Safety Transport Bureau confirmed yesterday that Qantas engineers accidentally put nitrogen into the oxygen tanks of a Boeing 747 at Melbourne Airport.

Non-flammable nitrogen is commonly used to fill aircraft tyres.

The aviation source said: "Qantas took delivery of the new nitrogen cart 10 months ago.

"It looked exactly like the old oxygen cart. When the attachments did not fit they went and took them off the old oxygen cart and started using it."

The mistake was spotted by an aircraft engineer and reported to the Civil Aviation Safety Authority, which declared it a one-off incident. But the aviation source said: "This could have affected at least 175 planes."

An Australian Transport Safety Bureau spokeswoman said Qantas identified 21 aircraft at risk and another 30 at minor risk because of oxygen top-ups.

The planes were inspected and no positive results found.

People often think that having unique connections on gas bottles, tankers etc. prevents errors. As this shows it does not as it is always possible to convert the connections. In fact unique connections can form a false sense of security if you are not careful.

Andy Brazier