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August 12, 2011

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HSE powerless to prosecute over hospital’s asbestos neglect

A Welsh hospital that allowed maintenance contractors to work in areas where asbestos was present and in an unsafe condition is likely to be spared prosecution owing to a legislative blunder relating to NHS reforms.

Up to 30 maintenance workers have potentially been exposed to asbestos at Bronglais Hospital in Aberystwyth over a five-year period in which the hospital’s controls in managing asbestos were found to be inadequate. The hospital had failed to take proper action after a survey in 2004 found asbestos in stairwells and lift shafts.

The unsafe practices, which required maintenance workers to access, and work in, these areas, were quickly identified when the hospital came under the control of Hywel Dda Health Board – one of seven new Health Boards created in 2009 as part of NHS reforms in Wales. The HSE was informed and corrective measures were implemented, with the regulator undertaking an investigation of the hospital’s management of asbestos between 2004 – when the Control of Asbestos at Work Regulations came into force – and the point at which the shortcomings were discovered.

However, errors in the drafting of the legislative Order that restructured the NHS bodies failed to ensure that matters of previous corporate criminal responsibility were transferred to the seven new Health Boards. All “senior accountable managers” who worked at the hospital between 2004 and 2009 have also since left the organisation.

Consequently, the HSE – despite admitting that it would have instigated prosecution proceedings if it had the power – cannot take the Health Board to court over the breaches. A spokesperson for the watchdog said: “HSE has investigated the matter and has concluded that breaches of health and safety legislation had occurred. However, having sought independent legal opinion, we have concluded that the failure to transfer criminal liabilities from NHS Trusts to the successor Health Boards means there is no prospect of a successful prosecution.

“Had criminal liability been transferred then HSE would have prosecuted Hywel Dda Health Board for the historical failures to manage asbestos between 2004 and 2009.”

The spokesperson also revealed that the full findings of its investigation have now been communicated to the Health Board and those staff directly involved in the incident. She said the inquiry is ongoing, insofar as the Health Board has to report back to the Executive to confirm that the measures it has taken are working.

Hywel Dda Health Board, which took over the running of the hospital following the NHS shake-up, emphasised that asbestos was not present in areas accessible to patients, or the public – but could not rule out the possibility of contamination as a result of asbestos fibres being transported via workers’ clothes. Neither could they rule out the possibility that workers might have been exposed to asbestos prior to 2004.

A spokesperson for the Health Board said: “We are ensuring that all maintenance staff are involved in the HSE investigation and we continue to offer support and advice to those who have concerns. We regret that any of our staff may have been exposed to asbestos.

“However, once again, we would like to reassure the public that the new Health Board has introduced measures to ensure that asbestos is effectively managed across all our premises. The fact that this issue was highlighted so quickly once the new Health Board was established demonstrates this.”

Controls it has implemented since the failure came to light include: putting in place an asbestos policy; implementing access control and permit-to-work procedures; devising method statements and a training plan; and providing suitable PPE.

Construction union UCATT has written to Carwyn Jones, the First Minister of Wales, demanding an inquiry into how the legislative error occurred and calling for action to reverse the situation.

The regional secretary for UCATT Wales and South West region said: “This is an intolerable situation. Workers have been systematically exposed to asbestos and yet they will be denied justice due to a bureaucratic muddle. Carwyn Jones needs to act quickly to resolve these problems in order to restore confidence among workers.”

The union was quick to point out that the blunder does not directly affect civil matters, and that workers whose health has been damaged by exposure to asbestos will still be able to seek compensation.

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12 years ago

Utter incompetance!!!
and still they get away with it.

12 years ago

I really don’t understand where the HSE are coming from? There was no problem prosecuting NWR for failures when Railtrack owned the infrastructure, nor was there any issues prosecuting P&O Ferries for the capsizing of the Herald of Free Enterprise when owned at the time of the disaster by Townsend Thorenson. I’m sure there must be other examples.

Never mind the Control of Asebsots at Work Regs, what about HSWA s3(1)?