Manual handling – human rights – no lifting – disability
The case involved two women who were looked after round the clock by their parents in adapted accommodation, together with assistance from paid carers. They were wholly dependent on lifting for all personal care tasks related to their physical and social well-being. The unresolved issue in the case related to whether the local authority concerned ought to have planned for care to involve manual lifting, or only hoisting – or – if a mixture should have been planned for, given the range of the women’s difficulties and needs, then how should the balance between the two methods have been struck?
The challenge had been commenced on the basis that East Sussex County Council had long since maintained a ‘no lifting’ policy in relation to care planning. By the time the hearing took place, however, the council had amended its policy, without admitting it had ever amounted to a blanket ban on manual lifting, and the judge was content to consider the issues on that basis. The judge did however make it clear that a lifting policy was highly unlikely to be lawful if, either on its face or in its application, it imposed a blanket ban on all manual lifting; or only allowed for manual lifting in life threatening situations or where use of a hoist was a physical impossibility.
This meant that the issue for the judge was not the lawfulness of the policy but the reasonableness of the council’s view about how its lawful policy should actually be applied to the two service users. The judge stressed that other policies might be equally as lawful, so the council’s amended version was not to be regarded as a prescriptive model for the contents of every other authority’s policy.
The lifts which were the subject of the dispute consisted of various categories including routine, daily lifts (eg turning from prone to supine, transferring from bed to changing trolley); lifts necessitated by unexpected circumstances (eg slipping from a hoist in the bath; slipping under the water) and by external unforeseen events such as fire emergencies or power failures; and external lifts involved in recreational activities such as shopping, swimming and horse-riding.
The key principles to emerge from the decision are
- health and safety law does not require a guarantee of absolute safety of employees – the employer’s obligation is to avoid or minimise the risk to staff so far as is reasonably practicable;
- in the context of care arrangements for people with disabilities, their human right to dignity, independence and participation in the community, as protected by article 8 of the European Convention on Human Rights must be taken into account when assessing risk;
- when assessing the impact on the disabled person, the following must be considered, though none are determinative, in a user-focused way: the physical and mental characteristics of the person, the nature and degree of disability; the wishes and feelings of the person, and negative reactions to proposals. Prolonged resistance, and obvious great distress may make it impracticable to avoid manual lifting;
- a balance must be struck between the needs and rights of service users and the needs and rights of carers – the one does not take precedence over the other;
- in striking that balance matters of dignity and respect weigh heavily with people who are already shut out from so much of what makes life enjoyable and enriching for the majority of society;
- there will be situations in social care where manual lifting, even though it entails a real risk of injury to the care worker, is inherently necessary when providing an appropriate adequate care package which takes accounts of the needs and human rights of service users.
The judge expressly rejected any suggestion that those who choose to take employment in jobs that expose them to enhanced risks (eg firemen, ambulance men, nurses and others in the caring professions) were presumably content to accept those risks.
The judge went on to give further guidance on what is required from employers. Once a balance has been struck between the competing interests of carer and cared for, the employer must make appropriate assessments and take all appropriate steps to minimise the risks that exist. The assessment must be properly documented and lead to clear protocols which cover all situations, including foreseeable emergencies. There would inevitably come a point where a protocol would become too prescriptive; situations n which it must be for the carer to decide how to act must be indicated, for example, in an emergency, or if the client is evincing distress or showing prolonged signs of resistance. The judge recognised that these matters would necessarily involve questions of sensitivity and judgment on the part of the carers, but said that that, after all, was the nature of the task.