By Peter James, partner in safety, health and environment team, BLM and Edward Sainsbury, partner in disease team, BLM
The Health & Safety Executive’s (HSE) guidance on COVID-19 related incidents in respect of RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) presents a significant challenge to those responsible for reporting within a care setting. Care providers are understandably concerned that notifying the HSE of a non-reportable incident could result in an unnecessary HSE investigation. Some care providers are also concerned that a notification under RIDDOR may be misinterpreted as an admission of responsibility should a criminal and/or civil action be subsequently pursued.
Perhaps in part as a consequence of ambiguity within the HSE’s guidance, recent data suggests that care providers may not be complying with reporting obligations under RIDDOR. After all, the HSE accepts there are difficulties in applying the reporting criteria in the unusual circumstances presented by the COVID-19 outbreak. Consequently the HSE has supplemented its initial guidance with a number of examples setting out when and when not to report. It is debatable whether the necessary clarification was achieved.
Care providers should be aware that a failure to report deaths, dis- eases and dangerous occurrences in accordance with RIDDOR is a criminal offence that can attract a significant fine and/or imprisonment. It is essential that you fully consider the applicability of RIDDOR when assessing a COVID-19 related death or occurrence.
THE HSE’S GUIDANCE
The HSE’s guidance regarding reporting under RIDDOR and COVID-19 indicates the following:
There is no requirement under RIDDOR to report incidents of disease or deaths of members of the public, patients,care home residentsor service users from COVID-19.
The reporting requirements relating to cases of / deaths from COVID- 19 under RIDDOR apply only to occupational exposure, that is, as a result of a person’s work.
The guidance further states an employer must report under RIDDOR when:
- • an accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2). This must be reported asa dangerous occurrence.
- a person at work (a worker) has been diagnosed as having COVID-19 attributed to an occupational exposure to coronavirus. This must be reported asa case of disease.
- a worker dies as a result of occupational exposure to coronavirus. This must be reported asa work-related death due to exposure to a biological agent.
The HSE subsequently has provided further guidance which details a number of examples of reportable and non-reportable occurrences:
- A laboratory worker accidentally smashes a vial containing coronavirus on the floor, leading to people being exposed
- A sample from a COVID-19 patient breaks in transit leading to spillage
- A worker, for example a police officer or prison officer, is deliberately coughed on or spat at by a person of unknown COVID-19 status
- A health or social care worker is providing treatment or care to a patient or service user who is not known to be COVID-19 positive, but the patient or service user subsequently tests positive
THE CHALLENGE – REPORT OR NOT REPORT?
Whilst a COVID-19 associated death of a resident in a care home is not reportable under RIDDOR, theremayhave been occupational expo- sure to employees working within the care home from residents.
If a care worker is diagnosed with COVID-19, would this be reportable under RIDDOR as an occupational disease? The care provider must make a judgement on whether the care worker contracted the disease at the care home. If the worker had cared for a resident who died of COVID-19, there would appear to be a reasonable prospect that the infection of the care worker was attributable to exposure to an infected resident, particularly if staff were not provided with suitable personal protective equipment (PPE),either through shortages or a failure to fol- low government guidance.
The guidance says as follows:
There must bereasonable evidencelinking the nature of the person’s work with an increased risk of becoming exposed to coronavirus.
Factors to take into account when making this decision could include:
- Whether or not the nature of the person’s work activities increased the risk of them becoming exposed to coronavirus?
- Whether or not there was any specific, identifiable incident that led to an increased risk of exposure?
- Whether or not the person’s work directly brought them into contact with a known coronavirus hazard without effective control measures, as set out in the relevant PHE guidance, in place such as personal protective equipment (PPE) or social distancing
- For an occupational exposure to be judged as the likely cause of the
disease, it should be more likely than not that the person’s work was the source of exposure to coronavirus, as opposed to general societal expo- sure. Responsible persons do not need to conduct extensive enquiries in seeking to determine whether a COVID-19 infection is work-related. The judgement should be made on the basis of the information available.
There is no requirement for RIDDOR reports to be submitted on a pre- cautionary basis if there is no evidence to suggest that occupational exposure was the likely cause of an infection.
SITUATIONS THAT REMAIN UNCLEAR
There are number of likely scenarios which are not covered by the HSE’s guidance and could potentially fall within either the reportable or non-reportable bracket. These are scenarios which some care providers will undoubtedly find themselves in.
A situation may arise where a person at work has not been diagnosed as having COVID-19, but there has been a failure to provide staff with suitable PPE. Exposure or potential exposure to COVID-19 could be con- strued as “an accident or incident at work” which “has or could have led to the release or escape of coronavirus” and as such, reportable as a dangerous occurrence. This does not however fall within one of the examples of a reportable incident.
A specific example is given of a health or social care worker providing treatment or care to a patient or service user who is not known to be COVID-19 positive, but the patient or service user subsequently tests positive. According to the guidance, this would not be reportable as a dangerous occurrence.
POTENTIAL FOR UNDER-REPORTING
According to the Office for National Statistics, to date there have been circa 14,000 reported COVID-19 associated deaths within care homes.Those deaths are a potential marker of COVID-19 exposure with- in the working environment. So, whilst these deaths are not reportable, the circumstances surrounding those deaths may well be, especially considering the challenges that care homes are facing (i.e. lack of PPE and resources).
It has been reported that to date the HSE has only received 91 RID- DOR reports relating to the death of health and care workers. This appears low compared to the number of reported deaths of care work- ers (131 as of 20 April 2020) and suggests that some care providers may not be fully satisfying their reporting requirements under RIDDOR
ADVICE TO CARE PROVIDERS GOING FORWARD
Each incident & occurrence will need to be assessed on its own facts when considering if reportable under RIDDOR. The consequences of a duty holder failing to comply with its obligations under RIDDOR can be very significant including large fines for care providers and individuals responsible for reporting incidents. We advise care providers to seek legal advice if uncertain whether a COVID-19 related occurrence or incident is reportable – your duty under RIDDOR should not be ignored.