Despite training and awareness campaigns professionals working within the healthcare sector are still sustaining injuries caused by needles on a daily basis. We at Thompsons represent a large number of clients who have been injured in this way and have to endure the fear and anxiety of waiting on test results to confirm whether or not they have contracted a blood borne disease such as Hepatitis B or HIV. Unfortunately those affected by this also tend to be the lowest paid staff within the health sector with domestics and auxiliaries being the most common victims. The cause of the injuries in most cases is carelessness by other members of staff who fail to use sharps bins provided. However there is also concern that appropriate ‘safer sharps’ are not being implemented due to cost.
In May of 2010 Council Directive 2010/32/EU was introduced to implement the Framework Agreement on Prevention from Sharps Injuries in the hospital and healthcare sector signed by European Social Partners HOSPEEM and EPSU. The purpose of the directive as defined by the European Agency for Safety and Health at Work is to ‘implement the agreement so as to (1) prevent works’ injuries caused by all medical sharps (including needle sticks), (2) protect workers at risk and (3) set up an integrated approach establishing policies in risk assessment, risk prevention, training, information, awareness raising and monitoring.’
Member states have until 11 May 2013 to implement this directive and the UK Government has now drafted proposed regulations implementing the directive. The Association of Personal Injuries Lawyers (APIL) has reviewed the draft regulations and stated: ‘The proposed regulations do not correctly implement the directive; they are unclear and ambiguous; and leave some groups of people who should be entitled to protection vulnerable to risk of harm.’
The draft regulations do not transpose the wording of the directive and in doing this serve to water down the clear wording and aim of the European Directive. The draft regulations are to apply to employers whose main activity is the managing, organising and provision of healthcare found in regulation 3(1). Often those staff exposed to sharps such as domestics and auxiliaries previously mentioned, are not in fact employed by the NHS but employed by outside contractors such as SERCO who would not fall within the definition of employer and those employed by them would not be protected. The directive notes that the agreement applies to all workers in the hospital and healthcare sector whereas the UK Government is attempting to make it apply on the basis of the employers statues within the healthcare profession and not the workers. This is despite the purpose of the directive and regulations being to protect workers.
Further, the proposed regulations seek to include a defense for the employer of ‘reasonable practicability’. This is to say that an employer need only substitute the traditional, unprotected medical sharp with a safer sharp where ‘reasonably practicable’. The directive however does not seek to allow a defense and in fact states in clause 6 ‘Where the results of the risk assessment reveal a risk of injuries with a sharp…workers’ exposure must be eliminated by taking the following measures…’ This defense allows the regulations to be interpreted in such a way that cost implications relating to the provision of safer sharps will be allowed and this could lead a postcode lottery of safety with different trusts applying different standards to suit their budget.
Overall the regulations proposed do not serve to protect those vulnerable workers who are suffering as a result of carelessness and the squeeze on budgets. The watering down of these regulations appears to be the governments way of preventing these being successfully used against employers in legal claims however that is ignoring the purpose of the regulations in the first place which is to prevent sharps injuries and as a consequence prevent legal claims. The cost of needle stick claims is one which could be avoided by the NHS and the money put to better use elsewhere.