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Health and Safety Executive to enforce head injuries in sport?

The issue of head injuries and concussion in sport is a very serious one.

Health and Safety Executive to enforce head injuries in sport? – a look at one of the more unusual recommendations in Parliamentary committee’s “Concussion in Sport” Report

Intro

“We are astounded that sport should be left by the Health and Safety Executive to mark its own homework.”

This was the stark criticism of the Digital, Culture, Media and Sport Committee in its “Concussion in Sport” report published on 22 July 2021.

Along with recommendations to NHS England and UK Sport, the Committee called on the Government to “mandate the Health and Safety Executive to work with National Governing Bodies of all sports to establish, by July 2022, a national framework for the reporting of sporting injuries … [and]… within a year of the framework being published, all organised sports should be required to report any event that might lead to acquired brain injury.” It also suggested the Health and Safety at Work etc Act 1974 as a possible vehicle for HSE’s involvement.

Concussion in sport

The issue of head injuries and concussion in sport is a very serious one. The scientific evidence given to the Committee suggests a possible correlation between those involved in particular sports and an increased incidence of dementia in later life. However, current scientific evidence does not demonstrate a causal link with any specific practice, activity or incident, and so exactly how to address the issue of head injury in sport is clearly a matter for hot debate.

That debate is for others to have, however the recommendation that monitoring and/or enforcement in relation to head injuries might be an issue for the HSE - who are responsible for enforcing health and safety legislation through, amongst other things, the bringing of criminal prosecutions - raises a number of fundamental issues, both legal and practical.

Potential issues

The first issue is that HSE’s stated position to date has been that “Health and safety law does not cover safety matters arising out of the sport or activity itself”. This could lead to issues regarding its involvement at both a policy level and an enforcement level, and would therefore appear to require primary legislation. Any such primary legislation would likely be the subject of substantial lobbying and there would likely be considerable challenges in getting it through Parliament.

Secondly, if any enforcement were to be required, then it would not normally be HSE who have the relevant enforcement jurisdiction. The aspects of sport and leisure activities that do fall under health and safety law predominantly fall under the jurisdiction of local authority environmental health officers, rather than HSE inspectors (there are some exceptions, most notably in an education setting or where facilities or activities are organised by the local authority itself). It would be very difficult for local authorities to enforce a national framework in any consistent way.

Another huge issue would be the proposed application of such rules to community “grass roots” sport. From a legal angle, many amateur sports clubs do not owe duties under health and safety legislation (as such legislation predominantly applies to employers) – bringing potentially hundreds of thousands of organisations within the ambit of criminal legislation is unlikely to be welcomed. From a practical angle, as my time on the committee of my rugby club tells me, there is often not the organisational infrastructure in place at grass roots level to allow for such a system to work in practice.

However, by far the biggest issue would appear to be the sheer scale of the exercise suggested. Take rugby for example. The RFU’s “Headcase” Guidelines currently estimates one concussion injury in every 2-3 games at professional level, tapering down to one in every 10 games for 15-18 year-olds and one every 25 games at adult community level. The evidence heard by the Committee from Professor Willie Stewart was that it could be as high as one every game at professional level. With the number of rugby matches being played across the country every week, that is a huge number of injuries the Committee is expecting the national governing body to have reported to it, and (presumably) to action or monitor some sort of response to it and then report to the HSE

That is just one sport. Studies indicate that in other sports head injuries are just as prevalent - equestrian sports contribute to the highest percentage of traumatic brain injuries for adults, and such injuries are also commonplace in boxing, football, motorsport and a whole range of other popular sports. Once all sports are factored in, the administrative burden on all governing bodies, and on HSE (or local authorities) to monitor those governing bodies and that collective data, would appear to be considerable.

Final thoughts

Of course, we do not yet know if the government intends to take up this recommendation, and what any such reaction from HSE would be. However, it is something which should concern all involved in the organisation of sports – from National Governing Bodies and professional clubs, right down to community “grass roots” clubs/participants.

For further information on the HSE's guidance on concussion in sport, contact our sports law solicitors.

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