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The HSWA creates a criminal liability not only for employers in respect of their employees, but also in respect of members of the public. So, whilst a Trust may believe that it has discharged its statutory duties under the HSWA by ensuring, as far as practicable, that medics have suitable PPE; it needs to additionally consider the risk to patients and others. This is more straightforward in a clinical setting where physical measures or barriers can be put in place, but more challenging in the community where staff visit patients at home.
Whilst it might not be in the public interest to prosecute Trusts for relatively minor breaches of the law during the emergency period, none of the various coronavirus regulations abrogate Trusts’ HSWA duties.
Andy Cowper rightly points out the duties of an NHS trust toward its employees and its service users and the inevitable conflicts that may arise between those two duties. He cites the NHS trust or Foundation trust as the employer of those on a national contract. But there are many and varied forms of employment of clinical staff in the NHS, in the community as well as in hospital.
In the past, each organisation was responsible for procurement and supply of goods such as PPE. In 2016 this was centralised to achieve efficiency and bulk purchasing discounts by NHS Supply Chain. It therefore seems harsh to hold a local trust liable for the inadequate provision of PPE when that provision was effectively taken out of its hands 4 years ago.
I don't think the courts should take this narrow view when DHSC clearly have a responsibility with regard to provision. If it could be shown that a local employing trust had a good stock of PPE but failed to distribute it to their front-line workers, then the responsibility should lie locally, at their feet. But if that trust had made strenuous efforts to order PPE from NHS Supply Chain, to no avail, I'd argue they should not be held responsible.
Re: What the law says about PPE responsibility
Dear Editor
The HSWA creates a criminal liability not only for employers in respect of their employees, but also in respect of members of the public. So, whilst a Trust may believe that it has discharged its statutory duties under the HSWA by ensuring, as far as practicable, that medics have suitable PPE; it needs to additionally consider the risk to patients and others. This is more straightforward in a clinical setting where physical measures or barriers can be put in place, but more challenging in the community where staff visit patients at home.
Whilst it might not be in the public interest to prosecute Trusts for relatively minor breaches of the law during the emergency period, none of the various coronavirus regulations abrogate Trusts’ HSWA duties.
Yours faithfully
Jon Mack
Competing interests: No competing interests