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HSE enforcement action prompts warning to health and care providers on COVID-19 respiratory protective equipment

HSE’s investigation found that not all persons had received adequate Face Fit testing.

HSE has announced that it has taken enforcement action against an NHS Trust in relation to a lack of “Face Fit” testing for respiratory protective equipment (RPE) in the early days of the pandemic.

Morecambe Bay NHS Foundation Trust was providing RPE to its staff for certain procedures, but HSE’s investigation found that not all persons had received adequate Face Fit testing to ensure that the RPE was sealed to the wearer’s face.

The investigation arose from the death from Covid of a radiographer at the Trust in April 2020, in the early days of the pandemic, although it does not appear to have been suggested by HSE that the evidence shows that the death was caused by the lack of Face Fit testing on RPE.

Improving respiratory protection, and Face Fit in particular, had been high on HSE’s list of priorities within the construction and manufacturing sectors even before the pandemic, but Covid has understandably extended the focus into other sectors as well.

HSE’s Face Fit guidance can be found on its website. Organisations cannot simply issue RPE to staff and expect that has satisfied their obligation to ensure they have effective protection. RPE that is not sealed to the wearer’s face offers very limited, if any, protection, and, given that faces come in all shapes and sizes, the fit of the RPE on each employee must be individually tested to ensure that it is sealed.

HSE has a range of different enforcement powers available to it in relation to such breaches, from formal written advice to criminal prosecution (including criminal prosecution of senior managers and directors). On this occasion, HSE’s enforcement action only consisted of formal written advice, rather than anything more serious. However, the NHS, healthcare and care providers should take note of this decision and ensure that they have adequate Face Fit testing in place where RPE is used.

HSE will expect this enforcement action to act as a warning to all employers within these sectors. They are likely to take the view that failure to tackle this issue now that such a warning has been issued should warrant more serious enforcement action in the future, including, potentially, criminal prosecution. Clearly organisations should ensure that their RPE Face Fit testing procedures are up to date and cover all relevant staff.

It is unclear if HSE will continue to retrospectively investigate such matters from early in the pandemic. If your organisation did not have such measures in place at the time and your organisation experienced high levels of staff catching Covid at the time, it would be prudent to seek specialist legal advice to help protect your position.

The full HSE Press Release on Enforcement Action.

For further information on any of the issues raised, please contact our regulatory solicitors.

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