Manual Handling

All employers have a general duty under the Health and Safety at Work Act 1974, so far as is reasonably practicable, to ensure the health, safety and welfare at work of staff, including the provision of safe systems of work. Further, employers have a specific duty, so far as is reasonably practicable, to avoid the need for employees to undertake any manual handling operations at work, which involve a risk of injury to the employee. Where avoidance of such a need is not reasonably practicable, employers must make a ‘suitable and sufficient’ assessment of all manual handling operations and take appropriate steps to minimise the risk of injury to staff (Reg. 4, Manual Handling Operations Regulations 1992).

For health and social care workers, the need to ‘lift and carry’ at first sight seems inextricably bound up with the needs of the clients and patients they look after. According to the Royal Society for the Prevention of Accidents, every year, over 5000 manual handling accidents in the health and social work sector are reported to the Health and Safety Executive (HSE) and the majority of these involve patient handling. Our view is that if they are to be effective, manual handling policies and decisions and risk assessments need to be set within the wider context of the statutory duties and discretions laid down in the community care and NHS legislative framework (eg s2 CSDPA 1970; NHS and Community Care Act 1990 and the NHS Act 1977). On the other hand, the courts have long recognised that local authorities and NHS bodies are entitled to consider the health and safety of employees in deciding how to meet their duties and exercise their powers under welfare legislation. Thus, complaints about back pain from staff, when assisting a severely physically and learning disabled person to walk, were a legitimate consideration for an authority to take into account in deciding how to meet a client’s assessed mobility needs (R v Cornwall County Council, ex parte Goldsack).

Service providers do need to balance the welfare needs of the service users against the safety of staff, rather than simply sacrificing one to the other. In ex parte Killigrew, Birmingham City Council’s decision to change a care package (and to reduce the hours by half) on the back of a manual handling risk assessment which showed that the cost of the care was going to double, was held to be unlawful because the council had failed properly to take account of the absence of any change in the client’s needs. The judge found that the reassessment of the client’s needs was carried out to take account of the need for two carers to assist in the lifting process (which effectively doubled the cost of the care package), rather than being based on a true evaluation of the level of care needed by the client. Conversely, in Bayley v Bloomsbury Health Authority, the Authority had simply not done enough to ensure the safety of its nurses, in seeking to optimise the care of a patient. The case was brought by a student nurse who had been injured whilst assisting an elderly female patient with poor mobility. The patient’s original care plan had stipulated the need for two nurses to walk with her, but it was considered that this would hinder or prevent her rehabilitation; and a plan of one nurse, with a walking stick for the patient, was eventually settled on. Although the judge acknowledged that the aim of maximising the patient’s independence was a ‘laudable’ one, the Authority was nonetheless found to have acted negligently towards the student nurse. The judge said that where a care plan was devised which had such built-in and deliberately accepted risks which impinged on the overall safety of the nurses, it was incumbent on the Authority to ensure the requisite level of training so that all nurses, and student nurses in particular, were capable of dealing with the specific additional problems that the plan presented. This training obligation will obviously be relevant when authorities or PCTs or district nurses ‘negotiate’ levels of acceptable risks for clients to take, in order to enable the public bodies to justify the economics of keeping the client semi-independent at home.

Liability to employees

Employer liability for injury to staff caused by the manual lifting, supporting and carrying of clients and patients is governed by the common law of negligence and a host of legislative measures falling mainly under the umbrella of the Health and Safety at Work Act 1974 (HSWA), and including the Manual Handling Operations Regulations 1992 (MHOR), the Lifting Operations and Lifting Equipment Regulations 1998, the Management of Health and Safety at Work Regulations 1999 (MHSWR) and the European Directive 90/269/EEC on the manual handling of loads, which definition includes human beings.

An employer may be liable jointly under statute and the common law, but statute generally imposes a greater burden of responsibility than the common law. For example, the law of negligence requires that employers assess the risk of reasonably foreseeable injury to employees, arising from manual handling operations. The MHOR, however, require that foreseeable risk is assessed. In Hall v Edinburgh City Council, the court found no breach of the common law duty of care, where a back injury was sustained by the employee, since the operation in question had been carried out daily without injury or complaint and could not be said to have been reasonably foreseeable as a probable consequence of the operation. The court did, however, find a breach of the MHOR: the possibility of injury resulting from the lifting operation was foreseeable and the employer had failed to show that it was not reasonably practicable to avoid that particular manual handling operation, as required by the MHOR. Edwards v National Coal Board (1949) established that determining what is ‘reasonably practicable’ will involve weighing the magnitude of the risk against the costs involved in taking the necessary measures to avert it. Avoidance of the risk will be reasonably practicable unless the size or significance of the risk is grossly disproportionate to the cost of avoiding it (ie the risk is low/insignificant, but the cost of avoiding it is high). From an operational and common sense (rather than legal) point of view, the cost of a potential injury to an employee (ie legal costs, compensation, recruitment and training of replacement staff, etc.), should be added to the equation, when weighing up the cost/risk balance. A further consideration as to whether avoidance is ‘reasonably practicable’, is the prospective detriment or loss of benefit to the patient in not performing the operation, as against the risk to the employee in so doing. Having to pull an unusually low, but light, bed away from the wall in order to make it up, involved a barely quantifiable risk as compared to the safety benefits for the occupant – an epileptic child – of having the bed in that position. It would have been wrong to expect the employer to avoid the need for a well-trained employee to pull on the bed by effectively increasing the risk of harm to the child, through falling out of bed (Koonjul v Thameslink Healthcare Services). This will also be a highly relevant consideration in the health and social care field bearing in mind that the clients will almost inevitably be vulnerable and needy, as was sharply illustrated in a landmark ruling by the High Court in February 2003. A, B, X and Y v East Sussex County Council involved the day to day personal care arrangements for two young women with severe mental and physical disabilities who were looked after round the clock by their parents in adapted accommodation, together with assistance from paid carers from the local authority.  They were wholly dependent on lifting for all personal care tasks related to their physical and social well-being. A fundamental difference of view arose between the women’s parents, on the one side, and the local authority on the other, as to whether and to what extent that moving and lifting should be done manually or (as the LA would have preferred) by using appropriate hoisting equipment. The parents had begun the legal challenge on the basis that East Sussex County Council had long since operated 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, Mr Justice Munby, 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.

Key principles to emerge from the judgement are that:

  • 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.

Where it is not reasonably practicable to avoid a ‘risky’ manual handling operation, an employer will still need to be able to show that it has applied its mind to the risk in question and taken adequate steps to reduce that risk as far as possible, through the provision of adequate staff training, equipment, proper supervision, relevant information, etc. An employer who fails to reduce the risk to the lowest level reasonably practicable will be liable in damages for any consequent injuries to the employee. The HSE defines ‘lowest level reasonably practicable’ in the context of reducing the risk as a requirement to take any steps necessary until the cost of any further precautions – in time trouble and/or money – would be far too great in proportion to the benefits – a woolly test for the best of us. This duty to reduce risk, and to supply relevant information on loads, arises independently of the duty to carry out a risk assessment. Employers cannot escape liability by seeking to argue that because a risk assessment has not been carried out, it is not yet incumbent on them to take appropriate steps to minimise risk of injury (Swain v Denso Marston (CA) 2000).

Risk assessment

The duty to assess risk under the MHOR is triggered once a manual handling task carrying a risk of injury has been identified. In negligence cases, the courts will take account of any risk assessment which has or should have been carried out. Assessments must be kept under review to ensure that their validity remains current. The factors and questions to which an employer must have regard under the MHOR are:

 

  • the tasks: do they involve holding or manipulating loads at a distance form the trunk; unsatisfactory bodily movement or posture (eg twisting, stooping, reaching upwards); excessive movement, pushing or pulling of loads, risk of sudden movement of loads; frequent or prolonged physical effort; insufficient rest or recovery period; and is the work rate imposed by an external process?;

 

 

  • the loads: are they heavy, bulky or unwieldy; difficult to grasp; unstable or with contents likely to shift; sharp, hot or otherwise damaging?;

 

 

  • the working environment: are there any space constraints preventing good posture; uneven, slippery or unstable floors; variations in levels of floors or work surfaces; extremes of temperature; is the lighting or ventilation poor?;

 

 

  • individual capacity: does the job require unusual strength or height, or create a hazard to pregnant employees or those with a health problem; does it require special information or training for its safe performance?;

 

 

  • other factors: is movement or posture inhibited by personal protective equipment or by clothing?

 

The health and safety legislation does not prescribe who should (nor who is competent to) carry out a risk assessment, but it is clear from the case law that a valid risk assessment can only be done by some one with the requisite degree of capability. Assessments purportedly undertaken by very junior staff, or evidenced orally with no supporting documentation, have been dismissed by the courts as failing to show that an employer had fulfilled its obligations imposed by statute.

Where contracting arrangements exist between agencies, it is especially important to have in place clear arrangements to ensure competent risk assessment and avoid the danger of conflicting appraisals. An example of the potential for difficulties would be a domiciliary care agency threatening to withdraw its staff because it disagreed with the local authority’s assessment of the low level of risk involved in moving the client without the help of any equipment. Health and Safety Commission (HSC) guidance, ‘Manual Handling in the Health Services’, recommends that such arrangements include avoidance of conflict and procedures for resolving any such conflict. Draft national minimum standards for domiciliary care agencies (likely to be in force in January 2003) made pursuant to the Care Standards Act 2000 require agencies to ensure that a separate moving and handling risk assessment is undertaken whenever staff are required to help a user with any manual handling task, and that a comprehensive plan to manage the risks, including manual handling, is drawn up in consultation with the service user and their carer, included in the service user plan and on the personal file kept in the agency and implemented and reviewed annually. The national minimum standards for care homes for older people are less specific in setting out manual handling obligations, but remind care home managers of their duties under the MHOR. In our view these edicts reflect the likely approach of the law, that the authority cannot delegate its risk assessment responsibility, owed to the client, inherent in care planning, to the service provider, and the service provider cannot delegate its risk assessment responsibility to its employees by relying on the purchasing authority’s own assessment.

Training

Both the Health and Safety at Work Act 1974 and the MHSWR stipulate the provision of such training as is necessary to ensure the health and safety at work of employees. The training that is provided must be adequate to the task(s) being performed, and must be updated to take account of new or increased risks, or the introduction of new/different equipment. The courts have found a breach of the duty of care where:

    • there was a failure to provide regular training on lifting techniques to district nurses, who were deemed particularly vulnerable by dint of working alone in the community;

 

 

    • training sessions for nurses were arranged during unsociable hours (in the middle of the night);

 

 

    • reliance was placed on a one-day course as sufficient training for a nurse on a psycho-geriatric ward

 

 

    • the only manual handling training provided for care assistants was voluntary and unpaid, and consequently had not been attended.

 

In the Bayley case, the employer had provided training in positioning, holding and moving patients, but was negligent for failing to provide sufficient training on a particular and identified risk (ie what to do in the event of a patient, who was being manually supported, stumbling and falling). However, an absence of training will not necessarily be decisive of the issue of liability. Factors which a court will take into consideration include whether it was reasonable to conclude that the particular employee did not need training (based, for example, on the employee’s experience and previous attendance on relevant training courses); whether the particular injury would have been sustained regardless of any training that might have been provided; and the employee’s own abidance by any health and safety instructions issued by the employer (see Employee Responsibilities below).

Equipment

Where equipment is provided to reduce the risks involved in manual handling (eg hoists, slings, trolleys etc.), it should go without saying that adequate training, information and instructions on the use of the equipment must be provided. Merely providing such equipment (and any necessary training) will not absolve an employer from further responsibility or from liability: use of the equipment should be monitored and encouraged. The Provision and Use of Work Equipment Regulations 1998 make it the employer’s responsibility to ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided. The regulations also impose a strict liability duty to maintain equipment in an efficient state, efficient working order and in good repair. In Stark v Post Office, the Court of Appeal confirmed that this obligation is absolute and a breach of statutory duty was found even though it was accepted that there had been no negligence on the employer’s part and that the defect in the equipment would not have been discovered even with a perfectly rigorous examination. Further, under the Liability (Defective Equipment) Act 1969, where an employee is injured due to a defect in equipment which is wholly or partly attributable to the fault of a third party, the injury is also deemed to be attributable to the employer’s negligence, regardless of whether or not the third party can be identified, and an employer cannot contract out of this liability. The Lifting Operations and Lifting Equipment Regulations 1998 impose further obligations relating to the examination and inspection, strength and stability, positioning and installation of equipment.

Employee responsibilities

Employees have a duty under the HSWA 1974 to take reasonable care for their health and safety and that of others who may be affected by their acts or omissions at work and to co-operate with their employer on health and safety matters. Failure to discharge this general duty is a criminal offence punishable on conviction with a fine.

Employees also have a duty to inform employers of any hazardous handling activities they identify and to use equipment in accordance with instructions and training given (MHSWR); and a duty to follow appropriate systems of work laid down for their safety (MHOR). The burden remains on the employer to provide a safe system of work, but in determining liability for a manual handling injury, the court will look to see whether the employee had discharged his or her statutory duties; was solely at fault for the injury sustained; or whether there was any contributory negligence on the employee’s part.

Liability to non-employees

The Manual Handling Operations Regulations do not explicitly impose any obligations towards non-employees, but a general duty to ensure the health and safety of persons other than employees is to be found in s3 HSWA 1974; and regulation 3 of the MHSWR 1999 requires an employer to conduct an assessment of the ‘risks to the health and safety of persons not in his employment, arising out of or in connection with the conduct by him of his undertaking’. The liability under s3 HSWA is absolute, subject only to the defence of reasonable practicability. ‘Persons other than employees’ plainly includes patients, clients, informal carers and staff of other organisations. Breach of section 3 may lead to a prosecution – and a fine on conviction – by the HSE, but cannot lead to a civil suit for damages. Cases where the HSE has prosecuted under s3 HSWA include:

 

  • a mental health patient who was scalded whilst being bathed by an agency nursing assistant;

 

 

  • a care home resident who suffered burns on hot central heating pipes;

 

 

  • an elderly confused patient who fell from an unrestricted first floor window;

 

 

  • an elderly patient who died after a lack of training for staff led to an incorrect blood transfusion.

 

An accident or injury to a patient or client which can be directly attributed to an inadequate assessment of manual handling needs (of staff and/or service user) may expose the service provider to a claim in negligence. Further, delays or failure to provide assistance which would facilitate the manual handling tasks of informal carers can be the subject of complaints to the ombudsman. The ombudsman has found maladministration, for example, where a delay of over four years in providing necessary home adaptations meant that enormous demands were placed on the client’s wife, in terms of getting her disabled husband out of bed, dressing him and helping him up and down the stairs.

We strongly recommend the HSE’s guide ‘Handling Home Care: achieving safe, efficient and positive outcomes for care workers and clients’, produced in consultation with the Disability Rights Commission and the National Centre for Independent Living. The guidance gives practical advice on how to safely assist clients mobility whilst protecting staff and clients from physical risks, and can be ordered via the HSE’s website.

Other Manual handling guidance:

-Manual handling assessments in hospitals and the community Royal College of Nursing (1996).

-Guide to the Safer Handling of Patients: Introducing a Safer Handling Policy The RCN and National Back Pain Association, 4th ed. (1997).

-Manual Handling in the Health Services Health and Safety Commission (1998).

Getting to Grips with Manual Handling Health and Safety Executive (2000)

 

 

 

 

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