Emergency services – Sweet clarity

The plethora of position statements and explanatory notes issued recently in relation to risk-taking by the emergency services has merely emphasised that it’s ‘business as usual’. If police officers and fire-fighters are to be truly ‘liberated’, argues Bill Gough, more attention needs to be paid to those who set the rules in the command-and-control structure.

It has been two and a half years since I last wrote in SHP about the dilemma faced by first responders in the emergency services1 and, in the meantime I have, like so many senior officers and middle managers in the Fire and Rescue Service (FRS), watched with fascination the tortuous journey the risk-aversion debate in the sector has taken.
 
Recently, both Police and Fire Service commanders have been reported in the media as saying that exemption from health and safety laws will, in some way, ‘liberate’ first responders from the chains of risk aversion. The new government has also contributed to this ‘liberation’; indeed, readers could be forgiven for believing that it all started with the Government’s pledge to sweep away health and safety constraints and rebalance the system to ensure “protecting the public would take precedence over risk to members of the emergency services”.

Actually, it was a strategic alliance of the Association of Chief Police Officers (ACPO) and the Chief Fire Officers Association (CFOA) that started the ball rolling – well before the General Election. However, popular opinion, fuelled by media reporting, seems to be that, if anything, the shackles are tightening and we are more risk-averse now than ever.
 
To clear up concern and misunderstanding about how the emergency services can comply with health and safety legislation in the discharge of their operational duties ACPO and CFOA sought a joint statement from the highest level of the Health and Safety Executive. Given the difficult and often dangerous nature of their work they asked for clarity on how the HSE would view the actions of managers, commanders and individuals in the event of an injury or accident resulting in regulatory scrutiny.
 
At first, this high-level statement was to be issued jointly but as consultation and negotiation progressed, it was acknowledged that there were subtle differences in the two services that needed to be dealt with independently.

Milestones
In September 2009, the ‘Striking the Balance’ statement was published for the Police Service.2 Acknowledging the particular challenges for the service, the HSE set out its principles and reiterated a few simple but ‘golden thread’ statements:

• The employer’s health and safety duties are not absolute;
• Each is qualified by the test of what is reasonably practicable; and
• The Health and safety at Work, etc. Act (HSWA) does not require all risks to be eliminated.

Above all else, the statement clearly acknowledged that even when all reasonably practicable precautions have been taken to deal with foreseeable risks, injuries and deaths could still occur, and that it may be necessary to take some risks to secure a wider benefit to public safety. That seems to place into context the HSE view of the HSWA section 2 duty, and of where foreseeability sits in the risk-control process.

As far as the employee and HSWA section 7 are concerned the HSE makes an interesting statement of clarity: “In essence, this means that police officers and staff should act sensibly and responsibly within the command and control of their employer.”

It also clearly states that in circumstances where “individuals may, very occasionally, in extreme cases, decide to put themselves at risk in acts of true heroism” it would take the view that the HSWA has not been breached and that it would not be in the public interest to take action against such an individual.

Around the same time as the ‘Striking the Balance’ statement was published, SHP ran a very interesting article by Chris Roberts and Richard Booth,3 which explained in some detail the dilemma of police officers when acting selflessly and in the public interest. Regarding heroism, they speculated that senior officers must now be reluctant to recommend bravery awards for fear of providing evidence that might lead to a health and safety prosecution.

Personally, I find abhorrent the notion that anybody who is deserving of recognition for bravery would not be so recognised because “somebody else” fears the consequences!

In March last year, the HSE launched a similar ‘Striking the Balance’ statement for the Fire and Rescue Service.4 Ironically, it appeared just as an investigation into the deaths of four fire-fighters got underway. This statement takes the same approach as the version for the Police, with just three differences. Two relate to contextualising the legal framework of the Police Service and the risk-versus-benefit context of risk to the public and police officers.

The main exception, however, is in paragraph 6, where in addressing the duties of the employee only the Police statement includes: “…equally, HSE, like the Police Service, recognises that in such extreme cases everyone has the right to make personal choices and that individuals may choose not to put themselves at unreasonable risk”.

In each case, these high-level statements actually told us nothing new. They merely offered some rules of engagement from the HSE, spelling out how it will engage with each service to promote good health and safety management, as well as the factors it will consider when conducting an investigation using their own procedures and the Work-Related Death Protocol.5

In each case, it was recognised that “staff… make operational decisions” in what the HSE acknowledges are “sometimes dangerous, fast-moving and emotionally charged environments”. Chief fire officers welcomed the clarity the statement for their service offered on balancing operational needs and health and safety duties, while their counterparts in the Police Service were pleased that the HSE recognised how police officers perform many acts of bravery and heroism, as well as the complex challenges faced by officers.

As I see it, these documents were hardly ‘liberating’ – they simply provided clarification. To the HSE, the statements were simply a timely re-iteration of business as usual, or, more importantly, as it should be done.

Sandwich filling
Between these two HSE statements we had Lord Young’s ‘Common sense, common safety’ report,6 and its views on the Police and Fire Services. The peer truly used the language of liberation in making the recommendation that: “Police officers and fire-fighters should not be at risk of investigation or prosecution under health and safety legislation when engaged in the course of their duties if they have put themselves at risk as a result of committing a heroic act. The HSE, Association of Chief Police Officers and Crown Prosecution Service should consider further guidance to put this into effect.”

Note that CFOA is not included in Lord Young’s cast list of those charged with considering further guidance. This is because they are not signed up to the Work-Related Death Protocol and, in any case, do not have a statutory duty to investigate and prosecute such health and safety-related crimes.

Responding to this appeal for yet more clarity, the HSE and the CPS provided information earlier this year on how they will each deal with ‘heroic acts’.7,8 ‘Heroism in the Fire and Rescue Service’ states the HSE will view the actions of individual fire-fighters as heroic when:

• It is clear that they have decided to act entirely of their own volition;
• They have put themselves at risk to protect the public or colleagues; and
• The individual’s actions were not likely to have put other officers or members of the public at serious risk.

The HSE qualifies this even further by stating that if, during an investigation, it becomes clear that an incident involved an act of heroism by an individual fire-fighter, it will not investigate the action of the individuals in order to take any action against them.

Interestingly, the CPS, in its statement, refers to heroic acts being performed in “rare cases”. It also qualifies the individual nature of risk in stating that public interest would not be served by the prosecution of a police officer, or a fire-fighter who puts only their own safety at risk and breaches section 7 HSWA “while carrying out a heroic act”. (Again, I would argue that this is a case of ‘business as usual’ as the CPS would be unlikely to prosecute any case that didn’t meet the public-interest test.)

‘Striking the Balance’ refers to “acting sensibly within the command and control of the employer”. In ‘Heroism’ the HSE explains how it sees fire-fighting as a “complex activity, requiring clear definition of roles”. In its view, fire-fighting is a team activity in which the importance of maintaining command-and-control discipline is necessary to ensure the safety of fire-fighters (and others) and “this means that there are few circumstances in which an independent decision by a fire-fighter to put himself at risk will not result in risk to others in the team”.

With these two documents in hand the FRS should now be able to build a much clearer picture. Clearly, the HSE will focus its attention on the command-and-control arrangements that prevailed at the time an injury or incident occurred. These will include the policy, procedure, or ‘local rules’ for the relevant activity.

Now we see an emerging pattern – one that focuses on the system that creates the “command and control of the employer”. It is here, I believe, that risk aversion really lies.

A fractious year
Just when the dust was settling and the emergency services were getting accustomed to all this clarity, in Scotland the Sheriff’s ruling following a fatal accident inquiry prompted a senior Fire-Service commander to call for a change in the law.9

In an interview with the BBC, Brian Sweeney, the Chief Fire Officer of Strathclyde, warned that fire crews would not be prepared to enter burning buildings to save property unless health and safety law was re-written. Choosing his words carefully he did not suggest they would not enter to rescue a helpless victim but described how they are more likely to direct water from their jets through windows rather than enter to save property.

In May, Metropolitan Police Commissioner Sir Paul Stephenson, interviewed by the Daily Telegraph, said: “The emergency services should be free to risk their lives without being concerned about health and safety laws.”10 This interview ran on the day that Lady Justice Hallett published her recommendations following the five-month inquest into the 7/7 London bombings.11 During the inquest, LJ Hallett had heard complaints from police officers and fire-fighters that health and safety legislation stopped them from carrying out their duties. Several examples are published in the report, almost all of which refer to the ‘procedure’ or ‘operational rules’ to be applied at an incident, all of which are written by managers in the command-and-control system.

Then, at the end of June, the ITV ‘Tonight’ programme looked at “health and safety on the front line”.12 The programme used several recent prominent incidents as a backdrop against which to examine health and safety rules. For example, the Cumbrian shooting incident was used to illustrate how ambulance-service protocols resulted in crews being “ordered” to stay away from the area. (I would assume this intervention from ‘elsewhere’ lay in the command-and-control system). It was only once the gunman was no longer considered a threat that the air ambulance was permitted to land and convey casualties to hospital.

During the recording of the programme the production team ran a survey among some first responders (this excluded widespread fire service participation). The final question asked: “Have you ever ignored health and safety guidelines in order to help a member of the public”? A whopping 80 per cent said they had!

Just two weeks later, the HSE published yet more ‘additional guidance’ for the Police.13 The ‘explanatory note’ further clarifies the principles behind ‘Striking the Balance’ for that service. As in the explanation of heroic acts in the FRS, the note provides a number of police case studies that illustrate correspondence with the principles of ‘Striking the Balance’.

The HSE may, by now, be finding the constant requirement for clarification and repeated calls to clear up misunderstanding just a little tedious. After all, it has acknowledged the difficulties faced by first responders for many years. In 2001, it introduced the ‘Tolerability of Risk’ framework,14 which made it clear that even when risk is considered to be intolerable the framework should be used flexibly and with common sense. Indeed, the example they gave was where “certain activities may fall into the intolerable region for a short period of time, e.g. when the emergency services are engaged in saving life”.

In respect of the Fire Service, the aforementioned Lady Justice Hallett, in reference to the London Fire Brigade, qualified her position on the prevailing situation when she said: “If a fire officer allowed individual fire-fighters to follow their instincts and rush into a dangerous situation, ill-prepared and ill-equipped without proper back-up, and lives were saved, no public criticism would follow. However, if the officer did the same and someone died, the officer or their organisation could find themselves in the dock facing criminal charges, or in the civil court facing a claim for damages”. As one London Fire Brigade witness told the inquest: “It all depends on the result.”

Just who is the weakest link?
So who exactly is it that needs to be ‘liberated’ from the shackles of health and safety regulation and statute? Who is that ‘someone’ who intervenes, who is risk-averse, who needs to apply some common sense when writing procedures, the operating rules that 80 per cent of first responders find it necessary to bend or set aside?

I would argue that it’s the middle manager, the symbol of the command-and-control system, who sets risk-averse rules in the naive belief that it’s what the legislation, or the command-and-control system requires. It is they who need to apply the rule of common sense.

While I am not in a position to comment on the operating procedures, or rules that colleagues in the other emergency services may use, for the Fire and Rescue Service a good start in ‘liberating’ first responders would be to stop referring to Standard Operating Procedures as such – to stop creating the impression that SOPs are rules from which there should be no deviation.

In my professional capacity I have been able to scrutinise such documents in many fire services. Some of them use the word ‘must’ as many as three times on every page of a 35-page ‘how-to’ procedural note! Many of them contain pages of background technical information, filling the void of long-awaited training manuals.

I would argue that instead, they should – under the banner of operational guidance – provide competent incident commanders with a toolbox of acceptable options to guide, not dictate their decisions on the adoption of a safe system of work, i.e. one that matches the circumstances that prevail at the time of an incident, not some imagined worst-case horror. After all, if things don’t turn out as planned almost every critical scenario can result in “death or serious injury”.

I wonder how many of these rules are written without using the expert knowledge of the health and safety advisor, which many emergency services employ at quite some expense? I wonder how many are written by well-meaning authors who, through a lack of competence and understanding of hazard and risk, copy an age-old template? I also wonder how many rules are written to compensate for a perceived lack of experience, or, dare I say it, competence among first responders?

Surely every service commander should have the utmost confidence that all of his or her front-line operational staff are competent to safely fulfil the tasks they may be called upon to perform, and that their officers will only task them to do that which they are competent to undertake?

Or is it because of a lack of confidence in the competence, knowledge and experience of first responders that rules are written in such a way that they make decisions for them, and in doing so constrain first-responder behaviour and at the same time fail miserably to get the perfect match for the individual and very specific circumstances that prevail at an incident – which results in 80 per cent of them taking a different course of action?

Nobody sets out to make a mistake – to do things wrong. When necessary, everybody focuses on personal safety in order to address victim safety. James Reason15 tells us that many bureaucratic organisations respond to their occasional accidents by “writing another procedure” to prohibit the actions of the last event. He also explains that frequent and intended violations of the rules may mean that they are simply not applicable in the circumstances in which they are being ‘violated’, i.e. that the rules are wrong to begin with.

In these austere times the budgets of our emergency services are under significant pressure. Organisations like the Fire and Rescue Service, which wants to be ‘failure free’ and, at the same time, culturally able to adapt to changing demands, will need to  revisit their rules. Sidney Dekker would argue that such high-reliability organisations should “try to learn about ineffective guidance; learn about novel, adaptive strategies and where they do and do not work”.16

Conclusion
Quite frankly, the thought that service commanders are calling for exemption from health and safety statute sends a chill down my spine. I wonder where we would be now without such statute and regulation – how many more first responders would be prematurely retired, or worse?

Fortuitously, in June this year, the House of Lords intervened in the attempt to repeal sections 1, 2 and 5 of the Police (Health and Safety) Act.17 The Government has instead promised to look at whether more discussions are needed between the Police Service, the Home Office, the Department for Work and Pensions (DWP) and the HSE as to whether the necessary balance has been struck in protecting both police officers and the public.

This may well manifest itself in the government-commissioned independent review of health and safety legislation currently being undertaken by Professor Ragnar Löfstedt, who is scheduled to make recommendations to ministers later this year.

Personally, I would rather they academically probed the so called creeping culture of risk aversion first of all, and then attempted to create a culture of common sense among those in the command-and-control system who devise the rules.

Essentially, the officer who lets someone else face the risks of their decisions should always consider the consequences. Facilitating a recent command-and-control master class I conducted my own anecdotal survey of 45 second-response officers (these are the middle managers who arrive at incidents quite some time after first responders have encountered the “fast-moving, emotionally-charged” environment of an incident). Not one of them said they would consider the potential for litigation in their incident risk assessment, and not one said they would point the finger of blame at a first responder who broke the rules.

A similar number of first-response supervisors and commanders were categoric in the view that they would not consider anything other than the potential for physical injury to their team members when making a critical risk-versus-benefit decision.

Having spent many years as a second-response officer, I have witnessed common-sense rule violations at various incidents attended by Fire, Police and Ambulance first responders. When their back is ‘against the wall’, most first responders will, in the best interests of victim safety, put themselves in harm’s way as safely as circumstances will permit, and with one single, over-riding mantra: everyone goes home.

In the heart of London on 7 July 2005 there were as many, if not more, first responders who broke the rules than those who couldn’t, or believed they shouldn’t. It is also first responders – those who are the first to attend a chaos not of their own making – who are more likely to apply the rules written by their managers using common sense. And it is often their managers who intervene in this application of common sense to demand a return to the rules.

Interestingly, in the aforementioned explanatory note to ‘Striking the Balance’ for the Police Service the HSE recognises the role of officers and supervisors in the command-and-control system and also acknowledges that “individual officers may decide to disregard such advice in light of a changing situation and/or in the interests of the public”.

If there is a creeping culture of risk aversion – of fear of consequence other than physical injury – our service commanders should not take the easy option and simply declare that the black and white of the legislation is at fault. If they believe the culture is inefficient, unproductive, and not delivering the desired result they should take a closer look at that culture first and liberate their own rule-writers. Above all, they must ensure that heroes are never treated as villains.    

Bill Gough is one of the longest-serving operational officers in the Fire and Rescue Service – see page 4 for more information

References
1    Gough, B (2009): ‘The dynamic duel’, in SHP Vol.27 No.1, pp31-32 – www.shponline.co.uk/features-content/full/the-dynamic-duel
2    HSE (2009): ‘Striking the balance between operational and health and safety duties in the Police’ – www.hse.gov.uk/services/police/duties.pdf
3    Roberts, C and Booth, R (2009): ‘Corridor of uncertainty’, in SHP Vol.27 No.9, pp38-40 – www.shponline.co.uk/features-content/full/emergency-services-corridor-of-uncertainty
4    HSE (2010): ‘Striking the balance between operational and health and safety duties in the Fire and Rescue Service’ – www.hse.gov.uk/services/fire/duties.pdf
5    HSE (1998): ‘Work-related deaths: A protocol for liaison, HSE Books
6    HMSO (2010): ‘Common Sense, Common Safety’ – www.cabinetoffice.gov.uk
7    HSE (2011): ‘Heroism in the Fire and Rescue Service’, – www.hse.gov.uk/services/fire/heroism.htm
8    CPS (2011): ‘Heroic acts by police officers and fire-fighters’ – www.cps.gov.uk/legal/h_to_k/heroic_acts_by_police_officers_and_firefighters/
9    SHP (2011): ‘Fire chief sparks risk aversion row’, in SHP Vol.28 No.4, p8 – www.shponline.co.uk/news-content/full/fire-chief-sparks-risk-aversion-row
10    Daily Telegraph (2011): ‘Sir Paul Stephenson: Let us risk our lives’, 6 May 2011, Telegraph Media Group
11    HM Coroner for London (2011): ‘Coroner’s Inquest into the London Bombings of July 2005’, report of the Right Honourable Lady Justice Hallett, published 6 May 2011
12    ITV (2011): ‘Health and safety on the front line’, the Tonight programme, broadcast on ITV1 on 23 June 2011
13    HSE (2011): ‘Striking the balance between operational and health and safety duties in the Police Service: An explanatory note’ – www.hse.gov.uk/services/police/explanatory-note.pdf
14    HSE (2001): Reducing Risk, Protecting People, HSE Books
15    Reason, J (1990): Human error, Cambridge University Press
16    Dekker, S (2006): The field guide to understanding human error, Ashgate Publishing, Aldershot
17    SHP (2011): ‘Proposal to exempt Police from health and safety laws fails to convince Lords’, in SHP Vol.29 No.7, p6 – www.shponline.co.uk/news-content/full/police-health-and-safety-exemption-proposal-scrapped

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