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Dynamic risk avoidance: who’s to blame? |
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At a time when the role of the Fire and Rescue Service is expanding to include a wider range of risks than ever before, FIRE correspondent David Wright analyses the implications and contradictions of what is expected from staff in rapidly shifting hazardous situations, which he argues, places individuals and organisations in an invidious position
THE DROWNING OF A TEN YEAR OLD boy in Wigan has been the most recent case where the actions (or inactions) of emergency workers has led to criticism that defies logic following the enforcement of health and safety legislation at other times. That senior MPs are being quoted as suggesting that in times of emergency the “rule book should be thrown away” directly contradicts the outcome of recent cases where organisations have been prosecuted where their staff have taken actions outside their own organisational guidance.
The incidents include the drowning of Sub Officer Paul Metcalfe at Simon’s Lodge in 1999, the Wigan drowning incident, the Jean Charles de Menezes shooting in 2005 and several other key events involving the response to extended major emergency. The most pertinent (and controversial) comparison for the Fire and Rescue Services is between the drowning of SubO Metcalfe and that of Jordon Lyon at Wigan in May 2007. SubO Metcalfe attempted a rescue of a 15 year old boy and got into difficulties and tragically both lost their lives. The outcome of this tragedy was that the fire authority was under investigation by the Health and Safety Executive for a number of years with both regulators and representative bodies seeking a conviction for corporate manslaughter. At that time a successful prosecution could have led to personal sanctions against senior managers of Greater Manchester County Fire and Rescue Service and against the service itself. GMCFRS was faced with charges of breaching Section 2 of the Health And Safety At Work Act 1974 in what was claimed to be the first ever prosecution of a fire and rescue service under health and safety legislation.
Selfless and Courageous
Sub Officer Metcalfe was rightly praised by the prosecutor for the “selflessness and courage [one] would expect of a firefighter and lost his life as a result of trying to save another.” It was argued again by the prosecution that it was reasonable to assume that the first arriving crews would attempt such a rescue and that given this degree of foreseeability, provision should have been made to enable them to carry out this task safely. The accusation against the fire authority was that despite expectations of such actions being “obvious”, that no adequate steps had been taken to train or advise staff what to do in the circumstances.
The case was eventually dismissed but the very fact the case had been taken meant that this case however, did have major ramifications on the way the Fire and Rescue Service deal with water rescue incidents. Perhaps most fortuitously, the provision of large quantities of self-inflating lifejackets, throw lines and other water rescue equipment including boats directly stemming from the work following the drowning (and before the case was heard) has had a disproportionately positive impact on the community and service during recent months. How many of the 3,000 water rescues carried out during the widespread flooding in the last year would have ended tragically if firefighters had not been provided with appropriate safety equipment?
Flooding Risk
The scale of the summer flooding does throw into question the appropriateness of the scale of issue of equipment. Equipment provided for rescue of the individual or small group may easily be provided by a FRS. Large scale flooding such as that experienced last summer gives the Service a different challenge – how to achieve staff safety in the face of a force majeur? Given the HSE response to activities carried out during recent national scale emergencies, it is unlikely that in the event of a death during such an emergency they would be treated any differently than a solitary death of a worker.
During such a national emergency standards of health and safety protection may deteriorate due to the scale of the event. Staff may work beyond the hours stipulated in the Working Time Regulations and other requirements, all in a noble cause. Evidence from various sources shows that there were relaxations on these and other regulations during the 2007 floods.
It is pertinent to ask, however, how many rescues would have been accomplished if the expectations of the Health and Safety Executive had been strictly adhered to? How much additional harm would have occurred to members of the public if firefighters had not taken attempted rescues without the attendance of boats and appropriately equipped teams. The reality is that many more members of the public would have been put at additional risk if firefighters and others had not exposed themselves to prosecution in this way.
The Simon’s lodge incident, conversely, may have inadvertently contributed to the drowning of Jordan Lyons in Wigan in 2007. Police services, like other emergency services are now more acutely conscious of the risks they face for breaches of health and safety legislation. Understandably, from a corporate perspective, they can do no more than the law requires which is to undertake a reasonable approach to the foreseeable risks that their staff will be exposed to. They will be expected to take appropriate measures to reduce that risk to an acceptable level. Assuming that the incident that faced the Police Community Safety Officers (PCSOs) in Wigan as being reasonably foreseeable, there were a number of approaches that the police authority could take. The provision of instruction information and training is a statutory requirement of the HASAWA 1974 and the number of risk reduction measures run the range from accepting the risk the organisation faces, through provision of equipment and training to that of avoiding the risk altogether. By whatever process the police service in Manchester decided, staff were instructed “not to enter the water in case they put themselves in danger”. In this approach they are not unique – many police services do not provide water rescue training for staff whether PCSOs or constables.
Contradictory Approach
David Blunkett, who as Home Secretary introduced PCSOs to the UK, said that he would have hoped that the individuals concerned would have let basic human concern for others override instructions not to enter the water. The irony of law makers who seek to enforce health and safety legislation encouraging police officers, firefighters and others to ignore those very laws when it suits the circumstances has not been lost on many in the emergency services.
The police sergeant who attended to support the PCSOs did enter the water and attempted to rescue the child did so of his own volition. The Greater Manchester Police spokesman did emphasise that he acted so “against instructions, although they would not be disciplined for rescuing someone” said a GMPS spokesperson. Just what the impact of the sergeant drowning would have had on the police service, much less his family is impossible to say but undoubtedly prosecution of the service would have followed.
This could have resulted in an undignified court hearing with the service having to accuse the officer of disobedience in order to defend themselves. Undoubtedly there would be a wide range of critics accusing the service (any service) of bad taste and lack of good sense if they attempted to place the blame for an officer’s death upon that officer him or herself.
The predicament facing anyone who attends an emergency without all the right information, equipment or resources ready to hand is unenviable. Most people in their private capacity will do their utmost to help others in distress. The three people who died in 2007 in Portugal trying to save children on a drifting raft are only some of the more recent examples of a failed heroic attempt.
Absurd Reaction
Even in the work environment as demonstrated by Paul Metcalfe and the GMP sergeant shows that some have a disregard for their own safety when helping others, but other examples paint a different picture. According to The Sunday Times, a firefighter who saved the life of a woman in a river, was told he could face disciplinary action for disobeying service instructions. While appearing to be an absurd reaction to a positive outcome, one has only to imagine the prosecution of the service for the death of a firefighter in similar circumstances where it could be shown that the service tacitly encouraged this sort of behaviour by not enforcing safety rules. The prosecution of the Metropolitan Police Service for failing to protect the life of a member of the public, Charles de Menezes, throws up another little dilemma, even for one which could have transferability for the Fire and Rescue Service. The police service exists to protect the public from hazards and to take appropriate measures to prevent danger to the public.
In July 2005, officers shot and killed a suspected bomber following the actual and attempted bombings earlier that month which killed over 50 people. As we know with the benefit of hindsight, the casualty was an illegal resident, shot in good faith but in error. The precedent for prosecuting an emergency service for failing to protect the public and resulting in a death could have huge ramifications upon the service. At the most obvious level, will an organisation be responsible for failing to protect the life of a member of the public if one of its emergency vehicles kills another road user when driving to an emergency? More importantly, the home fire safety check initiative – probably the most successful fire prevention move since the 1989 ban on polyurethane foam – was delivered by local fire and rescue services. In the event of a fire fatality, caused by accidental means, is it possible that in some circumstances, the Service had failed “to protect” a member of the public having adopted a “duty of care” by undertaking an intervention such as fitting a smoke alarm?
Prosecution Open Season
Would the Health and Safety Executive want to treat every fire death as a possible prosecution? Some officers believe that the De Menezes prosecution means this is a distinct possibility and could mean the end of fire investigation officers working upon their own patch for fear of conflicts of interest. Is this a step too far? If so was the prosecution of the police for failing to protect the public on July 6, 2005?
The impact of health and safety prosecutions of the Fire and Rescue Service can be enormous. Most firefighters join the Service to help the communities and as part of their contract with the public, they expect to take risks proportionality to the circumstances. In an attempt to define what risks it will take, there exists the possibility that the public’s lives are being placed at danger because of the uncertainty that such prosecutions create.
Following the human instinct to save lives does create a personal risk that most people are likely to accept, but risks the possibility of a disciplinary actions (prosecution by the HSE for the employer). As has been shown at Wigan, failure to follow this instinct, relying instead on health and safety focussed standing orders invites public opprobrium and ridicule for both individuals and organisation.
The increasing risks to the community of flooding and widening role of the Fire and Rescue Service means that this sort of dilemma will increase to tax the minds of both managers and individuals alike. Unfortunately, following human instinct, will, unless the health and safety enforcers give clear signs about what is acceptable, means that no-one – victims, rescuers or their organisations – can be certain of what consequences will be in the event of a tragedy or even a successful rescue. |
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