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The asbestos problem facing the NHS is essentially no different to the problems faced by any property owner or employer with a large portfolio of premises constructed prior to the year 2000. That is, they are responsible for ensuring that employees and non-employees are not exposed to health or safety risks as a result of the presence of unmanaged asbestos.
In the case of the NHS this includes in-house maintenance teams, members of the public visiting the premises and external contractors.
The main difficulties for the NHS arise due to scale. The NHS is responsible for a large number of pre-year 2000 properties and a large number of employees. The NHS is reported to be the fifth largest employer in the world, behind McDonalds, Walmart, the Chinese Military and the US Department of Defense.
The Health and Safety at Work Act 1974 places a duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. Therefore, as the largest employer in the UK, the scope of the NHS’s duty is larger than that of any other UK employer. The challenge to the NHS is to fulfil this duty. This requires a robust management plan which can easily be communicated to and understood by all those who have a duty under the plan.
The human cost of asbestos disease is devastating and significant exposures are entirely avoidable. Current figures show that approximately 4,500 people die each year in the UK from asbestos-related diseases (predominantly mesothelioma, lung cancer and asbestosis). Also, the financial and reputational costs of getting asbestos management wrong are substantial. While the NHS devotes considerable resources to asbestos management, there are occasions when the system breaks down and inadvertent asbestos exposure occurs.
An example of where the NHS failed to manage their asbestos problem is highlighted in the case of West Hertfordshire Hospitals NHS Trust. The Trust’s estate team, whose work is to carry out small repairs and maintenance projects, where external contractors are not needed, was carrying out their work without knowing that asbestos was present or being trained to identify or control exposure.
Putting staff at risk
Between April 2000 and December 2011 the estates team could have disturbed asbestos fibres in the course of a job, but would have had no way of knowing or protecting themselves. During the prosecution the court was told that over the 11-year period, the Trust had identified some of the asbestos materials at their sites but did not have a management plan in place to control the risks associated with the deadly fibre. As a result, West Hertfordshire Hospitals NHS Trust was fined £55,000 and ordered to pay £34,078 in costs after pleading guilty to four breaches of the Control of Asbestos Regulations 2006 and a single breach of the Health and Safety at Work Act 1974.
Additionally the Royal Liverpool and Broadgreen University Hospitals NHS Trust were prosecuted by the Health and Safety Executive (HSE) after asbestos fibres were discovered in the basement of its offices at Derwent House on London Road in January 2013. The Court heard that the organisation had failed to act on a survey carried out in 2006 which identified that an area of the basement may contain asbestos, and recommended that its condition should be properly assessed.
A HSE investigation found that workers had regularly been visiting the basement to access patient records. The risk to them came to light on 9 January 2013 when the NHS Trust’s health and safety manager noticed that the doors to an out-of-use goods lift in the basement were damaged. The lift doors contained asbestos, which meant there was a risk of exposure to those accessing the basement. A subsequent survey found that asbestos fibres were present in several different areas of the basement. The Royal Liverpool and Broadgreen University Hospitals NHS Trust, of Prescot Street in Liverpool, was fined £10,000 and ordered to pay £696 in prosecution costs after pleading guilty to two breaches of the Health and Safety at Work Act 1974 on 26 February 2015.
The Trust, in line with the 2006 survey, should have assumed asbestos was present in an area of the basement and taken appropriate action to make it safe for people working there. Instead, workers were allowed to regularly visit the basement to access patient files increasing the risk of exposure to the potentially-deadly fibres. It is vital that organisations take the risks from asbestos seriously and deal with asbestos in a controlled and safe manner. When asbestos is managed well, inadvertent exposure can be prevented so that the health and safety of individuals is not put at risk.
The Control of Asbestos Regulations 2012, by virtue of Regulation 4, places a legal duty on those who own, occupy, manage or have responsibilities for premises that may contain asbestos. Those who have these responsibilities will either have a legal duty to manage the risk from this material; or a legal duty to co-operate with whoever manages that risk.
A Legal duty
The Control of Asbestos Regulations 2012 places a legal duty to ‘manage asbestos in non-domestic properties’ by: finding out if there is asbestos in the premises, its amount and what condition it is in; presuming the materials contain asbestos, unless strong evidence that they do not; making and keeping an up-to-date record of the location and condition of the Asbestos Containing Material’s (ACM) or presumed ACMs in premises; assessing the risk from the material; preparing a plan that sets out in detail how to manage the risk from this material; taking the steps needed to put this plan into action; reviewing and monitoring the plan and the arrangements made to put it in place; and providing information on the location and condition of the material to anyone who is liable to work or disturb it.
The requirement is to manage asbestos, not to necessarily remove it. If materials are in good condition and managed so that they cannot be disturbed, a periodic check might be all that is needed. With a large number of premises, and a large number of employees and visitors, maintenance work is inevitable and accidental damage is often possible. Therefore, all NHS premises which were constructed prior to the year 2000, will require an asbestos management plan based on a management survey.
The purpose of the management survey is to manage asbestos containing materials (ACMs) during the normal occupation and use of the premises. The dutyholder can compile a management survey where the premises are simple and straightforward.
Otherwise, an asbestos surveyor is needed. A management survey aims to ensure that: nobody is harmed by the continuing presence of ACM in the premises or equipment; that the ACM remain in good condition; and that nobody disturbs it accidentally
When a premise, or part of it, needs upgrading, refurbishment or demolition a refurbishment/demolition survey is required. This survey, which does not need a record of the condition of ACMs, is normally carried out by an asbestos surveyor.
A refurbishment/demolition survey aims to ensure that nobody will be harmed by work on ACM in the premises or equipment and that such work will be done by the right contractor in the right way.
The survey must locate and identify all ACM before any structural work begins at a stated location or on stated equipment at the premises. As it involves destructive inspection and asbestos disturbance, the area to be surveyed must be vacated and certified ‘fit for reoccupation’ after the survey.
If asbestos removal is required, the NHS, as the client, needs to appoint competent asbestos removal contractors. As a client the NHS is at the head of the procurement chain and has the final say on how projects are run. They have enormous opportunities to set standards for project delivery, including health and safety management. Therefore the law requires that clients make suitable arrangements for managing a project, and maintain and review these arrangements throughout the project to ensure health and safety risks are managed appropriately.
Clients, like the NHS, are not expected to be ‘experts’ in either construction work or asbestos work and do not need to directly manage or supervise the work themselves. However, they are responsible for ensuring appropriate arrangements are in place to manage and organise projects during both the ‘pre-construction’ and ‘construction’ phases of the project. This means appointing suitably competent people and providing them with sufficient information, time and resources to do the job properly.
A structured approach
Successful projects require good coordination and cooperation between all parties. Clients’ decisions, actions and inaction have an enormous impact on how work can be delivered, causing contractors to fail to meet industry and legal standards and potentially leaving clients with substantial criminal and civil liabilities, lengthy delays and disruptions to projects.
With a well‑communicated structured approach to asbestos management, the NHS can ensure that they continue to meet the challenge to comply with health and safety regulations across their extensive portfolio.
To support all clients ARCA has published a guidance note: Guidance on Clients Responsibilities on appointing Asbestos Contractors.