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We were concerned earlier this week to read the comments of Roger Livermore reported by BBC Scotland and the Daily Record newspaper regarding the low number of criminal prosecutions taken against Scottish Health Boards where preventable deaths occur or patients are harmed as a consequence of their organisational failures.

Mr Livermore, a former Health and Safety Executive Crown prosecutor in England and Wales, was speaking in relation to the death of Nicola Black, who tragically took her own life after being admitted to Crosshouse Hospital in Kilmarnock on 31 August 2010. NHS Ayrshire and Arran finally pled guilty to charges relating to breaches of Health and Safety law which led to Nicola’s death on 18 August 2014, and was fined £50,000.

However, Ms Black’s parents Ian and Janette Black are now said to be calling for an inquiry into exactly how the NHS in Scotland operates to ensure compliance with its legal duties to keep patients safe.

According to Mr Livermore, his investigations reveal that too often Health Boards fail to meet a duty to ensure that patients are not exposed to risks to their health and safety which arise from the way that Health Boards, as employers, conduct their business. He described seeing evidence of “a never-ending stream of avoidable harm” which “from the perspective of the law which does apply, could, and should, have been prevented." He also explained that this harm is compounded because in too many cases no prosecution is ever brought against the Health Board concerned. From our own work, we know that where prosecutions do occur too often this takes too long.

In response, a contrasting view was put forward by Prof Jason Leitch, Clinical Director of NHS Scotland and head of the Scottish government's innovative Patient Safety Programme. Prof Leith told BBC Scotland that while "Health and safety legislation exists for a very good reason and applies in all workplaces, it doesn't apply to individual patient harms which occur in healthcare systems.”

Plainly, there is a stark disagreement between Mr Livermore, someone experienced in investigating employers’ alleged breaches of Health and Safety law and ensuring the law is given full and proper effect, and Prof Leitch, who is effectively the representative of one of the largest public sector employers in the country, about what Health Boards’ legal duties are. Perhaps this is not surprising. But the very existence of such a disagreement informs us precisely why victims like the Black family are requesting an inquiry into what our Health Boards’ duties are, and how these should be fulfilled. 

While many people perhaps think that Health and Safety law only applies to protect employees at their place of work, in fact the existing Health and Safety law places duties on Health Boards and other employers to take care to look after non-employees who interact with their organisation and business.

Specifically, section 3(1) of the Health and Safety at Work Act 1974 provides that: "It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety."

In this respect, we are in no doubt that Mr Livermore is correct to state that the existing law does place a duty upon our NHS Health Boards to provide healthcare services in such a way as to ensure, so far as is reasonably practicable, that patients are not exposed to risks to their health or safety.

Whilst we support the good work that NHS Scotland does, like Mr Livermore we also support the rights of victims and their families to hold Health Boards to account when they fail to comply with the law and avoidable harm or death is the terrible result.

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