Scottish Government

Using the law to develop and improve equipment and adaptation provision

Chapter 5
Health and safety at work legislation

The following paragraphs summarise aspects of health and safety at work legislation, with a particular emphasis on implications for equipment and adaptations and on the balancing of cost, risk, benefits and limited resources.

5.1. Overall duty of employers to employees: Health and Safety at Work Act Etc 1974, s.2. Employers have a duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees'. The duty includes in particular:

1. the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risk to health
2. arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances
3. the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employers
4. so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risk
5. the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe without risks to health, and adequate as regards facilities and arrangements for their welfare at work

5.1.1. Implications for equipment and adaptation provision: As far as employee safety is concerned, there are plenty of implications in relation to equipment and adaptation provision. Taking the reference to `system of work' and to the use, handling, storage and transport of `articles' [for which substitute equipment], relevant matters would include, for example, purchasing suitable equipment, inspecting, checking, recording, tracking, recall, maintenance, cleaning, storing, demonstrating, delivering, instructions repair, replacement - not to mention the explicitly stated `information, instruction, training and supervision'. [See paragraph 5.3.1] for more detail on matters relevant non-employees as well]. These implications would hold in a number of different work contexts, including employer's premises, the premises of other organisations and people's own homes.

5.2. What is reasonably practicable? The term `reasonably practicable' [in the 1974 Act and elsewhere in health and safety work legislation] has been interpreted by the courts as involving a balancing act between risk and cost; so, where a risk is small, but would require disproportionate time, resources and effort to do something about it, it might not be reasonably practicable to do so. However, where the risk is significant, then the reasonable practicability test might demand that something be done even at significant cost; likewise it would be reasonably practicable to deal with a small risk that could, however, be dealt with at low cost.

This approach to reasonable practicability should generally be welcomed by professionals involved in equipment and adaptation services; on the one hand, they wish to reduce or eliminate risks, but on the other hand are aware that to chase after every last trivial risk at disproportionate cost would be to bring the service to a standstill.

The Health and Safety Executive has issued advice on `elective risk' in the context of social services, and noted that if people are to be encouraged to develop or maintain their independence, then a certain level of risk-taking will be necessary. The advice states that the key to getting the balance right - between health and safety and independence - lies in social services assessment, and it is the adequacy of such assessment that HSE inspectors would scrutinise. A key part of the social services assessment would need to cover an individual's ability to judge the risks that he or she might be taking [HSE SIM 7/2000/08. Social services social inclusion and elective risk].

5.2.1. Reasonable practicability and benefit to patients and clients. Section 2 of the Health and Safety at Work Act 1974 refers to the duty of an employer to employee, in terms of reasonable practicability - and likewise the Manual Handling Operations Regulations [MHOR] 1992. The Court of Appeal in England has firmly stated that this test of reasonable practicability only makes sense in the context of the organisation involved and its role in society. For instance, an ambulance man might have to accept a greater degree of risk than a furniture removal firm - since he provides a public service to people in need - and the decision as to what manual or mechanical lifting to employ would depend not just on medical needs but also on the response and feelings of the patient and informal carer [ King v Sussex Ambulance NHS Trust]. Similarly, the fact that beds in an NHS unit were against the wall for the safety of the disabled children, did not mean that the duty was breached concerning reasonably practicable steps under the MHOR 1992 - even if the risk to the care assistant making the beds might thereby be greater [ Koonjul v Thameslink Healthcare NHS Trust]. See further below at para 5.9.

5.3. Duty of employers to non-employees: Health and Safety at Work Act 1974, s.3. Every employer has a duty to conduct its undertaking in such a way as to ensure, so far as is reasonably practicable, that people not in its employment but who may be affected by the undertaking are not thereby exposed to risk to their health and safety.

5.3.1. Duty to non-employees: supportive of good quality equipment and adaptation services. The term non-employee literally covers what it says and could cover, for instance, clients, patients, informal carers, paid carers from other agencies, professionals from other statutory agencies - and so on.

As far as non-employee safety is concerned, relevant matters might include purchasing suitable equipment, inspecting, checking, recording, tracking, recall, maintenance, cleaning, storing, demonstrating, delivering, instructions, repair, replacement, emergency call-out will all be relevant. Such matters are dealt with in the substantial Medical Devices Agency publication, Medical device and equipment management for hospital and community-based organisations [MDA DB 9801], aimed at both the NHS and local authorities, and which was distributed in Scotland by Scottish Healthcare Supplies.

It is also arguable that a reasonably practicable system [in relation both to employees under s.2, and to non-employees under s.3, of the 1974 Act] will include efficient storage, distribution and response to safety notices and other advice issued by Scottish Healthcare Supplies [see below]. Indeed it is notable that this very matter is referred to in Circular NHS MEL [1995]74, Reporting of adverse incidents and defective equipment, issued to the NHS [but not to local authorities], and stating that there must be clear written procedures for the prompt alerting of relevant staff to hazard notices and safety action notices.

Likewise, one of the criteria contained within the Medical Devices Controls Assurance Standard, applied by the NHS in England as a risk management tool, refers to the distribution, maintenance and implementation of such notices and advice [Department of Health, Controls Assurance Standards, October 2001 version]. Other relevant guidance should be taken account of - such as that setting out guidelines for the review of patients in Scotland with orthoses [Circular NHS HDL[2001]16, Guidelines for the provision of orthoses/footwear].

These are all matters which professionals would probably say are `obvious'; however, unless equipment and adaptation provision is properly thought through and reasonably sound policies and procedures adopted, things can go awry.

Case example: checking equipment. During a cardio-angiography a syringe containing air was used, which resulted in the patient's death. The Health and Safety Executive prosecuted the NHS Trust under s.3 of the 1974 Act; the court found the Trust liable and asked, given the obvious risk in respect of the equipment, why there had been no strict discipline and procedure such that it was axiomatic routine that staff using the machine checked it before use [ HSE v Norfolk and Norwich Healthcare NHS Trust].

Case example: checking equipment. A safety notice issued by the Medical Devices Agency in June 2002, pointed out that the failure of a piece of equipment resulted in patient harm and the need for resuscitation. Investigation showed that the equipment, which was on loan, had damaged battery contacts - and that the responsibilities for checking loaned equipment were unclear. Consequently, instead of receiving an annual check as recommended by the manufacturer, the equipment had not been checked for five years [MDA SN2002[17] Management of loaned medical devices, equipment or accessories from manufacturers or other hospitals].

5.3.2. Maintenance of equipment and adaptations on loan in the community: what is reasonably practicable? Section 3 of the 1974 Act is particularly important in relation to the maintenance of community loan equipment and adaptations, because more specific regulations concerning work equipment, including lifting equipment - see paras 5.7 and 5.8 below - will not generally apply where equipment and adaptations are not being used by employees [as is the case with much equipment and adaptations loaned to, or otherwise provided for, people in their own homes].

Local authorities and the NHS loan large quantities of equipment to clients and patients in the community. Clearly it is not possible to keep all this equipment - in terms of both its fitness for use, and a client or patient's ability to use it appropriately and safely - under constant review. However, any such duty toward non-employees arising under s.3 of the 1974 Act is qualified by the term `reasonably practicable' which entails a balancing act between risk and cost.

This in turn means a process of prioritisation is necessary together with consideration of cost-effective methods of reducing risk. For instance, elements of a reasonably practicable approach to safer use of equipment in the community might involve the following type of categorisation:

1. regular maintenance of major items of equipment such as hoists, special beds, or stairlifts;
2. regular review of clients or patients identified as more vulnerable [community care service users should anyway be reviewed, as the guidance on single shared assessment reiterates: Circular CCD8/2001];
3. encouraging patients, clients, carers, other professionals to report perceived problems with equipment etc.

These sorts of approach are considered in the Medical Devices Agency publication, Medical device and equipment management for hospital and community-based organisations [MDA DB 9801]. Certainly the existence of local policies and practices - even if less than ideal - on reducing risk in equipment use in the community, are more likely to satisfy the legal test of reasonable practicability, than their absence.

Example: hoists and electric tin openers. Equipment in the community will pose different risk. As noted below, HSE is of the view that, even where the more specific regulations [LOLER] do not apply to lifting equipment such as hoists loaned to people in their own homes, nevertheless high standards of examination and maintenance will be required under s.3 of the 1974 Act. However, the question arises whether in the case of items such as electric tin openers loaned by a social work department, whether inspection by local authority staff is required, say, every six months, every year or never [?]. A social work department would have to decide whether, under the s.3 reasonable practicability test, the risk posed by the tin openers justifies such resource use - or whether a leaflet given to the service user would be sufficient.

Example: electric riser recliner chairs. In the wake of a several accidents involving electric riser recliner chairs - including a child fatality - it appears that some local authorities have adopted a blanket policy of not issuing such chairs on grounds of safety. However, following the fatality, neither the Health and Safety Executive, nor the Medical Devices Agency [MDA SN2000 [19]], nor Scottish Healthcare Supplies [SAN [SC] 00/31]] advised that these chairs should not be supplied. Instead the advice stated that information and warnings should be given to users of such chairs, relating to, for example, the following of instructions, supervision of children, removing electric plug when not in use etc [MDA SN2000 [19]]. In the light of such advice, and applying the reasonable practicability test under s.3 of the 1974 Act, including benefit to the client, social work departments would have to ask themselves whether the risks posed by these chairs really justify the blanket policy of non-provision. For example, in terms of client benefit, the ability of some disabled people to manage independently in their home, will be severely compromised if they are not able to get out of a chair.

Example: review policy. A specific example of a policy of reviewing equipment is contained in Circular HDL [2001]16, which provides guidelines for the review of patients with orthoses. The review categories are:

1. adults within 1-4 weeks of initial supply and then at least every year
2. children within 1-4 weeks of supply followed typically by review every 4-6 months
3. load-bearing devices incorporating joint mechanisms [eg knee, ankle, foot etc orthoses] 1-4 weeks after initial supply then 6-monthly
4. people deemed to be at risk because of their medical condition, 1-4 weeks after initial supply, then typically every 4-6 months

5.3.3. Use of independent contractors or other organisations. A local authority or the NHS makes use of an independent organisation/contractor to deliver equipment or adaptations services on its behalf then. In order to cover themselves legally, they would need to show that there had been, for instance, an adequate tendering process, together with monitoring and review of the contract.

Case example: contracting out a service. When a local authority contracted out its refuse collection service, it was prosecuted successfully by the Health and Safety Executive for breach of s.3 of the 1974 Act in respect of injuries suffered by the contractor's employees. This was because the local authority had known from the outset that the contract was potentially under-funded, had not checked the safety credentials of the contractor and had failed to monitor the contract conditions. Bad practices had subsequently flourished, unsafe working was endemic and two serious accidents had occurred. The refuse collection service was also prosecuted under s.2 of the 1974 Act [ HSE v Barnet London Borough Council].
Such an example emphasises the importance of clarity, monitoring and review not only in such contracts with the independent sector, but also in joint working between local authorities and the NHS - for instance, if the former delegates certain functions to the latter [ see para 2.1.17].

5.4. Duty of employees: Health and Safety at Work Act 1974, s.7. Every employee at work has a duty to take reasonable care for the health and safety of himself and of other people who may be affected by his acts or omissions at work.

5.5. Health and safety at work policy: Health and Safety at Work Act 1974, s.7. Every employer with over five employees must prepare and revise as often as is appropriate a written statement of general health and safety policy [including the arrangements for carrying it out] and bring it to the attention of employees [s.2].

5.6. Risk assessment etc: Management of Health and Safety at Work Regulations 1999. These regulations place a number of duties on employers including:

1. the carrying out of suitable and sufficient risk assessment in respect of both employees and non-employees
2. reviewing the risk assessment
3. putting in place arrangements for the planning organisation, control, monitoring and review of preventative and protective measures
4. providing employees with comprehensible and relevant information on risks
5. co-operation and co-ordination in a shared workplace
6. take into account of individual capabilities of individual employees
7. training employees

Employees have a duty to use any machinery, equipment, dangerous substance, transport equipment, means of production or safety device provided to him by his employer in accordance with any relevant training and instruction provided.

Case example: risk assessment, beds and hot pipes. The Health and Safety Executive successfully prosecuted a care home under r.3 of the 1999 regulations [then in their 1992 form] and s.3 of the 1974 Act in respect of the fatal burning of a resident on a hot pipe [ HSE v Pen-y-Brn Nursing Home 1997].

Example: co-operation and co-ordination in manual handling. The Health and Safety Commission has made the point that, in the manual handling context, where people employed by different organisations [including agencies] are working together, there needs to be co-operation, co-ordination and clarity of responsibility if health and safety matters are to be covered [HSC 1998,pp.11, 26].

5.7. Lifting Operations and Lifting Equipment Regulations 1999 [LOLER]. These Regulations apply to lifting equipment [including what local authorities and the NHS might refer to as adaptations, such as stairlifts or through floor lifts] used at work. They impose a range of duties on employers and also apply - to the extent of their control - to people who have control to any extent of lifting equipment, of people at work using [or supervising or managing] equipment, or of the way in which lifting equipment is used. Duties include those relating to:

1. ensuring adequate strength and stability
2. positioning and installation
3. marking of safe working loads
4. organisation of lifting operations
5. examination and inspection
6. reporting of defects
7. and so on

5.7.1. Lifting equipment used at work. This is equipment used by primarily by employees; thus it would appear that equipment used only by clients or patients and their informal carers is not covered by these regulations. However, this does not mean that, for instance, the latter type of equipment should not be thoroughly examined, since a duty to do so arises, insofar as is reasonably practicable, under s.3 of the Health and Safety at Work Act 1974 [duty towards non-employees].

The implications of this appear to be that if a hoist is used in a person's home only by the disabled person and family, then the regulations do not apply; whereas if the hoist is used by, for instance, care agency staff or a district nurse, then the regulations do apply. Likewise, the Health and Safety Executive has even suggested that a stairlift used in a care home, but operated only by residents, would not come under the regulations. However, the Health and Safety Executive has also said that even where s.3 of the 1974 Act applies, it would nevertheless expect a similar standard of safety to be achieved, as if LOLER did apply [HSE SIM 7/1999/18, Application of the Provision and Use of Work Equipment Regulations 1998 [PUWER] and the Lifting Operations and Lifting Equipment Regulations 1998 [LOLER] to equipment in health services and social care].

5.7.2. Lifting equipment. Arguably, the test of whether equipment used at work is an item of lifting equipment should depend on a `primary purpose' test; for instance, hoists and lifts are clearly lifting equipment, whereas an adjustable height bed is probably, primarily a bed and only secondarily lifting equipment]. Clearly there will be grey areas and, ultimately it would be for the courts to decide what is, and what is not, lifting equipment. However, all this need not cause equipment and adaptation providers undue concern, since the range of duties - including a strict duty of maintenance [see 5.8.3 below] - in the Provision and Use of Work Equipment Regulations 1998 anyway apply to all work equipment, not just lifting equipment.

5.7.3. Thorough examination of lifting equipment. Equipment for lifting people, which is exposed to conditions causing deterioration liable to result in dangerous situations, must be examined thoroughly either every six months or in accordance with an examination scheme - which must be drawn up by a competent person.

This means first of all deciding whether the particular equipment is exposed to conditions causing deterioration liable to result in danger. For example, it might be decided that certain low risk items do not fall into this category [eg an inflatable lifting cushion, so long as it is adequately maintained under the Provision and Use of Work Equipment Regulations 1998: see HSE SIM 7/1999/18]. Second, a decision about the frequency of inspection then has to be made; only in the absence of such a decision, the six-month rule will apply.

The Health and Safety Executive has noted that despite recommendations by some manufacturers that hoists be examined thoroughly every six months, this is not necessarily required by the regulations, and decisions should be taken on the basis of the condition of the hoist, its work load and the performance history of that type of hoist [HSE SIM 7/1999/18]. The British/ European harmonised standard on hoists, BS EN ISO 10535 [1998] Hoists for the Transfer of Disabled Persons: Requirements and Test Methods, recommends that hoists be inspected at least every twelve months [HSE SIM 7/1999/18].

Even so, advice from the Medical Devices Agency states that slings, harnesses, straps and attachment clips be inspected every six months [MDA SN9929]. The Health and Safety Executive advises the same, unless deterioration is unlikely to result in a dangerous situation. Its advice also states that NHS Trusts and social services departments should be able to demonstrate that they have an effective system for identifying the location of slings and their examination interval, that thorough examinations are properly carried out with appropriate remedial action taken. With such a system, it states that individual records of examination may not be necessary [HSE SIM 7/1999/18].

5.8. Provision and Use of Work Equipment Regulations 1998 [PUWER]. These Regulations apply to equipment used at work. They impose a range of duties on employers and also apply - to the extent of their control - to people who have control to any extent of work equipment, people at work using [or supervising or managing] equipment, the way in which work equipment is used.

Equipment is defined widely, as covering any machinery, appliaance, apparatus or tool or installation at work - thus covering, what local authority and NHS equipment and adaptation services would consider to be, adaptations as well as equipment [for example, a ramp which has been installed]. Duties include those relating to:

1. the initial state of the equipment
2. working conditions
3. use of equipment for the proper purpose
4. suitability of equipment
5. maintenance [entailing strict liability]
6. inspection
7. dealing with specific risks
8. information and instructions
9. training

5.8.1. Equipment used at work. This is equipment used primarily by employees; thus it would appear that equipment used only by clients or patients and their informal carers is not covered by these regulations. However, this does not mean that, for instance, the latter type of equipment should not be thoroughly examined, since arguably a duty to do so arises, where reasonably practicable under s.3 of the Health and Safety at Work Act 1974 [duty towards non-employees].

Equipment might be used at work by employees in the employer's premises [eg local authority or NHS premises], in the premises of other organisations [eg a voluntary organisation's day centre] or in people's homes.

5.8.2. Scope of equipment covered by PUWER. The regulations draw the definition of equipment very widely, and the courts have interpreted them likewise. It seems that almost any type of equipment used by an employee in some way, in any work-related environment, will be covered.

For instance, items accepted by the courts as coming under the Regulations include:

• a curtain rail [falling on a nurse while helping a patient from bed to chair: McLaughlin v East and Midlothian NHS Trust]
• a table [being moved by a council employee, but with its folding mechanism broken, so that it could not be moved on castors as intended: Mackie v Dundee City Council], door [ Beck v United Closures and Plastics]
• a rotary grass mower [ Mitchell v Inverclyde District Council]
• a prison van [without suitable handholds for a custody officer: Crane v Premier Prison Services],
• a bolt holding railway track insulated fish plates [ Kelly v First Engineering], meat slicing machine [ English v North Lanarkshire Council]
• a steel cabinet [on which a nursery nurse cut herself : Duncanson v South Ayrshire Council]
• a whole car or just the folding tarpaulin roof of the car [ Solaglass v Tibbett & Britten]

It can be seen therefore, as far as equipment and adaptation services are concerned, a wide range of items will be covered [so long as they are used at work] by the Regulations.

5.8.3. Maintenance of equipment: strict liability. The duty is to ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair. This is a strict duty not qualified by the term `reasonably practicable'.

Case example: strict duty of maintenance. A postman won his case in the English Court of Appeal against the Post Office after a serious accident on his bicycle. The system of inspection and maintenance operated by the Post Office was competent and the case failed in negligence; however under the Regulations, the case succeeded on the basis that they imposed strict liability for defective equipment, even though there was no suggestion of moral blame attaching to the Post Office. The duty was not just to have a competent system of maintenance, but actually to have the equipment in good working order [ Stark v Post Office].
This strict liability identified by the courts in England has likewise been accepted by the Scottish courts - for example, in the case of McLaughlin v East and Midlothian NHS Trust, when a curtain rail surrounding a hospital bed fell without warning on a nurse who was assisting other staff to manoeuvre a patient into a chair. In this case, as in Stark v Post Office, the case in negligence in failed, but the court ruled that the case could proceed to proof in respect of the Regulations.

Case example: evidence of maintenance system. When a nurse alleged that she had been injured by a defective hoist, the court did not accept her evidence as to the state of the hoist - a decision partly grounded in the evidence presented to the court about the maintenance system in operation at the hospital and associated documentation [ Eaton v West Lothian NHS Trust].

Case example: benefits of providing appropriate beds and maintaining wheelchairs. A nurse already had a sore back from transferring dependent patients to and from fixed height hospital beds. One morning, she was called to reception where a barely mobile, 20-stone lady wanted to go to the ward to see her husband who had suffered a suspected heart attack. The only wheelchair available had a soft rear tyre; the nurse noticed this but was told that this was the only one available. Nevertheless, she made the decision to wheel the woman the 175 yards to the ward, during which task she suffered a serious back injury. The nurse won her compensation case in the English county court and received over 300,000 [ Commons v Queen's Medical Centre Nottingham University Hospital NHS Trust]. The financial implications of not properly maintaining its wheelchairs cost the Trust dear.

5.9. Manual Handling Operations Regulations 1992. These regulations demand that employers must, so far as is reasonably practicable, avoid the need for employees to undertake manual handling involving risk of injury; if this is not reasonably practicable, then, amongst other things, the employer the must reduce the risk to the lowest level reasonably practicable.

5.9.1. Implications for equipment and adaptation services. Appropriate equipment and adaptation provision is a major plank of risk avoidance or reduction in the manual handling field. For example, the Health and Safety Executive's guidance on manual handling in the community, Handling home care, gives many practical examples involving equipment [Health and Safety Executive 2002].

5.9.2. Elimination of all risk?. The regulations are not about elimination of all risk in all circumstances; clearly the twofold duty envisages that it will in some circumstances not be reasonably practicable to avoid all risk of injury. Consequently, guidance from the Health and Safety Commission states that certain areas of work in the health service entail higher risk - for example, rehabilitation which might involve manual handling rather than equipment use [ Manual handling in the health services, 1998].

5.9.3. Avoiding rigid policies on hoist use. Health and Safety Executive guidance warns against blanket `no lifting' policies involving the use of hoists in people's homes. It states that a policy requiring no hazardous lifting is clearly justifiable, but that such policies can be misinterpreted so as to result in the routine prescription of hoists for all moves and transfers irrespective of the wishes and sometimes the needs of clients; and goes on to state that the Manual Handling Operations Regulations 1992 should not be applied arbitrarily to people's care plans [ Handling home care, 2002].

Case example: balancing staff safety with children's needs: beds and bed making. Care assistants in an NHS residential unit for disabled children had to pull out beds which lay against the walls in order to make them. This increased the risk of injury to the assistants [although the Court of Appeal concluded that this was not a high level of risk]. Nevertheless, the court held that it was not reasonably practicable to have the beds situated away from the walls because of the safety considerations affecting the children [ Koonjul v Thameslink Healthcare NHS Trust].

Case example: local authority staff carrying items up stairs: providing reasonably practicable assistance. The English Court of Appeal found a local authority liable under the Regulations, when a carpenter was injured carrying doors weighing 72lbs up the stairs of a block of flats. The court held that the risk was low but that, equally, the relative cost to the local authority of supplying an assistant, was also low; therefore it would have been reasonably practicable to supply the assistant [ Hawkes v Southwark London Borough Council]. This example is clearly relevant in respect of staff who deliver equipment and adaptations for the NHS and local authorities.

Case example: provision of adequate instructions about risk. A Scottish health board was found liable under the Regulations, in respect of an injury to a hospital laundry worker, because it had not adequately mechanised the laundry. However, the court stated also that it would have imposed liability also for failure to pass down written [as opposed to simply word of mouth] instructions about weight limits [ Anderson v Lothian Health Board].

Case example: determination of what is reasonably practicable, manual handling wise, in the community care context. In February 2003, the English High Court considered the implications of what was reasonably practicable under the MHOR 1992, in respect of two women with profound learning and physical disabilities. Its answer was sweeping and is a firm and timely reminder that the MHOR 1992 must be seen in context. In assessing reasonable practicability the court stated that the following must be considered:
(a) possible methods of avoiding or minimising the risk
(b) the frequency and duration of the manoeuvres
(c) risks to the employee in terms of both severity and likelihood
(d) impact upon the disabled person, physical, emotional, psychological or social, of each of the possible methods of avoiding manual lifting - including an analysis of the physical and mental personality and characteristics of the person - this necessarily included the nature and degree of disablement
(e) the wishes and feelings of the disabled person, including any evinced negative reaction in the nature of dislike, reluctance, fear, refusal or other manifestation of negative attitude
(f) "the effect upon the disabled person's dignity and rights, including in particular their rights [protected by article 8] to physical and psychological integrity, to respect for their privacy, to develop their personality and to go out into the community and meet others and their right [protected by article 3] to be free from inhuman or degrading treatment"
Furthermore, consideration had to be given to personal dignity, the amount of respect afforded to their persons, their quality of life generally, their ability to spend their time in activities other than merely performing bodily functions - and, importantly, matters such as their access to the community. Individual assessment "was all" and had to: embrace the particular disabled person's personal physical and mental characteristics, be 'user focussed' and 'user led' and be part of the wider care-planning process for that particular individual. The assessment should also consider the person's autonomy, and be based on the particular workers involved [not workers in the abstract] [ A&B v East Sussex County Council].

5.10. Safety advice on equipment. Scottish Healthcare Supplies [SHS] distributes under contract to the NHS hard copies:

1. of its own safety action notices and hazard notices [which are either Scottish versions of certain Medical Devices Agency [MDA] hazard or safety notices, or are particular to Scotland and have no MDA-equivalent]; and
2. of most MDA device alerts and device bulletins

By way of courtesy [but not clear contract], distribution is made also to local authority social work services. Indeed, the Scottish Office [as it was then] Circular [NHS MEL [1995] 74], about adverse incident reporting and procedures for distributing safety information, was aimed only at the NHS

Internet access to Scottish Healthcare Supplies hazard notices and safety action notices is available only to NHS staff [although people in Scotland can access the Medical Devices Agency website and there find the text of MDA device bulletins and device alerts, most of which are applicable to Scotland - and also MDA safety notices and hazard notices which are not applicable to Scotland].

It will be seen that this is a somewhat complex situation, which effectively includes various anomalies and restrictions in relation to the accessing of Scottish Healthcare Supplies safety information by local authorities, the independent sector and other members of the public.

[At the time of writing, the Medical Devices Agency has announced changes to its system of issuing safety notices, effective from January 2003: it is replacing its previous types of notice with a single notice known as a Medical device alert].

5.10.1. Safety, joint working and open government? Restrictions on access to safety information would appear to work against the safety of users of equipment and adaptations, and against a reduction in the risk of accidents. Furthermore, the issue of commercial sensitivity, which is believed to be one reason why Scottish Healthcare Supplies have not made its information more widely available, is an issue that the Medical Devices Agency has clearly surmounted.

5.10.2. Content of, and acting on, safety notices etc. Safety notices, typically running to no more than two or three pages, may cover a wide range of community equipment including hoists, slings, wheelchairs, standing aids, electric riser chairs, walking aids etc. Device bulletins issued by the MDA are more substantial documents and have included, for example:

• MDA DB9801. Medical device and equipment management for hospital and community-based organisations
• Supplement to MDA DB9801. Checks and tests for newly delivered medical devices
• MDA DB2000 [02]. Medical device and equipment management: repair and maintenance provision
• MDA DB2001 [04]. Advice on the safe use of bed rails

A failure in an organisation to ensure the efficient receipt, distribution and action upon such communications from the SHS [and from the MDA, via the SHS] could well suggest a flawed system of work under health and safety at work legislation, and also render - in case of accident - the organisation more vulnerable to negligence actions. Indeed, guidance issued in 1995 to the NHS, covers the responsibilities of the NHS for reporting adverse incidents to Scottish Healthcare Supplies, and also states that hazard notices, safety notices etc should "be brought promptly to the attention of appropriate managers, staff and users of equipment" [NHS MEL [1995]74].

There are other relevant Scottish guidance documents relating to safety, for instance on the review of orthoses [in Circular NHS HDL[2001]16, or to standards on infection control [Scottish Executive 2000, Clinical Standard Board for Scotland 2002, and Circular NHS HDL[2001]10].

[Note: there appears to be an absence of detailed guidance on infection control in respect of community equipment services. Guidance endorsed by the Scottish Executive and focusing on community equipment services would almost certainly be very useful in Scotland - as would the equivalent in England, where there is likewise an absence of such focused guidance.

At the time of writing [December 2002], the Medical Devices Agency has placed on its Internet website some advice in the form of questions and answers in respect of community equipment services. This includes reference to the meaning of, and distinctions between, clean, socially clean, decontamination, disinfecting, high level disinfecting and sterilisation - and to the crucial point that the standard of cleaning required will depend on the risks associated with how, where and by whom equipment has been used.