do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual’.
In Hospital Medical Group Ltd v. Westwood (2012) the claimant was a GP who, aside from this job, was engaged by the Hospital Medical Group to carry out hair restoration on their clients using their premises on Saturday mornings. He claimed holiday pay under the Working Time Regulations 1998: that right is conferred only on workers. The employer argued that he was providing services to clients in pursuance of a business undertaking carried out by him but the Court of Appeal disagreed. They found that he was contracted by the employer as an integral part of its business. He did not offer his hair restoration services to the world in general and his work was wholly separate from his work as a GP. He qualified as a worker. This decision would arguably extend to an OH physician contracted to work on a regular basis as an adviser to a particular OH provider company, but not to one who offers his services to a number of different providers. In the latter case but not the former he would be in business on his own account. It should also be noted that the definition of ‘worker’ is expanded in the legislation protecting whistleblowers (Chapter 7).
2.2 Liability for criminal acts
The special responsibilities imposed by criminal statutes to promote the health and safety of the workers are most often placed on the shoulders of the employer or the occupier of the workplace, rather than on individual employees. The GP who employs practice nurses and receptionists is, as an employer, subject to prosecution under section 2 of the Health and Safety at Work Act 1974 (HSWA) if he fails to do that which is reasonably practicable to ensure the health, safety and welfare at work of his employees. Since the abolition of the Crown immunity of NHS authorities from prosecution under the HSWA, an NHS Trust can be taken to court for a similar failure.
Prosecutions of individuals rather than employing organisations are sometimes brought under section 7 HSWA which imposes a duty on every employee while at work to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work and to co‐operate with the employer or any other person so far as is necessary to enable him to perform his statutory duties under health and safety legislation. Only if the doctor or nurse is an employee will he be bound by this section. The duty is to take reasonable care, i.e. not to be negligent: the burden of proof of negligence in this section is on the prosecution. In R v. Mackrell (2019) the Company Secretary of Sheffield Wednesday Football Club, who had responsibility for safety at the Hillsborough football stadium, was convicted of an offence under section 7 for failing to take reasonable care in respect of the provision of entrance turnstiles to the ground, an error that contributed to the death in 1989 of nearly 100 Liverpool supporters who were crushed in overcrowded pens. In practice, however, few prosecutions are brought under section 7, and usually only when there has been gross carelessness. In R v. Beckingham (2006), an architect employed by a local authority was negligent in negotiating a contract for the maintenance of a cooling tower by not including an obligation to test and sample the water; as a result there was an outbreak of Legionnaire’s disease and several deaths. The defendant was convicted of a section 7 offence, but on appeal her conviction was quashed because of the trial judge’s failure to instruct the jury properly.
There have been a number of instances where the Crown Prosecution Service has brought a prosecution against a health professional for manslaughter where a patient has died through gross negligence. In one case, doctors who prescribed a lethal cocktail of drugs in excessive doses to a prisoner on remand were convicted of manslaughter (see Brahams (Chapter 5).An important recent case on the liability of health professionals for manslaughter, which emphasises that ordinary negligence giving rise to liability to pay compensation in the civil law is insufficient to amount to criminal responsibility, is Rose v. Regina (2017). Honey Rose was a registered optometrist working for Boots who examined a seven‐year‐old boy who, five months later, died suddenly of hydrocephalus. It was established that, had she performed the proper tests on the back of the eye, she would have identified swollen optic discs, a symptom of fluid on the brain, a potentially life‐threatening condition. She was clearly in breach of her duty of care and liable in negligence, but was she guilty of negligence so gross that it amounted to the crime of manslaughter? Her conviction was quashed by the Court of Criminal Appeal. In the criminal law it is necessary to establish that at the time of the negligent act or omission the defendant was aware of a serious and obvious risk of death. The defendant could not be guilty of a crime if she was unaware of such a risk because she failed to undertake a proper investigation, even though that was a breach of her duty of care. She was negligent and she and her employer were liable to compensate the victim but she was not guilty of manslaughter.
There is no record of an OH professional being accused of manslaughter, but in a situation where the OH professional is incompetent, there may be a prosecution under section 36 HSWA. Where the employer’s commission of an offence is due to the act or default of an OH professional, the professional is guilty of an offence and may be prosecuted and convicted as well as, or instead of, the employer. In R v. Lockwood (2001) an occupational hygienist worked as a consultant for a number of clients, including a woodworking factory. As a consultant he was not an employee so could not be prosecuted under section 7 of the Health and Safety at Work Act. An HSE inspector discovered that the level of airborne dust in the factory was well over the legal limit and the employer was in breach of the Control of Substances Hazardous to Health (COSHH) Regulations. The employer had relied on Lockwood’s advice. The advice was defective, because the consultant had failed to comply with the standards and procedures recommended by his profession. The HSE decided that a criminal prosecution should be brought, not against the employer, which had reasonably relied on the advice, but against the expert himself. Lockwood was found not to be a competent person, as required by the Management of Health and Safety at Work Regulations, though the employer could not have been expected to be aware of this since he appeared to have the relevant qualifications. He was fined £1000 and ordered to pay £2000 in costs because, by his default, he had caused the employer to commit an offence under the COSHH Regulations. Although no similar prosecutions have been pursued against OH professionals, the HSE confirms that cases have been considered.
In a similar case in 2004, a health and safety consultant, Christopher Hooper, was fined £3000 plus £750 costs for carrying out inadequate risk assessments of a woodworking machine which led to an employee losing part of a finger. The employer was also prosecuted and fined £5000 plus £837 costs.
2.3 Liability for negligence
In the civil law of tort, a duty of care falls on anyone who is placed in a position where he can, as a reasonable individual, foresee that his actions may cause harm to others. A tort (called delict in Scots law) is a wrongful act or omission, other than a breach of contract, in respect of which damages can be claimed by the victim from the wrongdoer in respect of loss or injury. The duty is to take the care which the reasonable man would have taken in all the circumstances of the case. Who is the reasonable man? He is the average, ordinary man ‘on the Clapham omnibus’, as one Victorian judge put it. If he holds himself out as having a particular skill, like a doctor, nurse, solicitor or accountant, he is judged by the standard of the reasonable average member of his branch of the profession; if an action is taken in the courts this standard will be explained by expert witnesses drawn from the same profession. That the standard of care expected from a member of the health care professions is that of a reasonable member of the profession was established for doctors in the case of Bolam v. Friern Hospital Management Committee (1957), subsequently always referred to as the Bolam test. In the case of Bolitho v. City and Hackney HA (1998) the House of Lords held that the standard of care was that of ‘responsible, reasonable and respectable’ practitioners. After this, medical expert witnesses have to demonstrate the reasonableness of their opinion,
