Abuse of the system

During my 30 years in the health and safety profession I have come across so many instances where health and safety has been used as a means of doing all the wrong things for all the wrong reasons when really it is a force for good. For instance, it has been used:

• As a convenient and lazy excuse to justify unpopular decisions or cover up management failures.
• To ‘cover the corporate back’ without real interest or regard for workers’ safety.
• As an attempt to justify insufficient risk control measures in order to avoid the additional time, trouble and cost involved in providing the proper protections.

In this story, it seems that all of the above apply.

What is risk assessment?

It is the fundamental principle underlying good health and safety management. Simply put, risk assessment involves identifying a hazard (anything that can cause harm), considering what the likelihood and consequences of it happening might be, and deciding what needs to be done in order to control risks and prevent the harm occurring.

The reason I have emphasised ’identifying a hazard’ is because it is important to this story—if you cannot identify a hazard then you cannot do a risk assessment.

So what went wrong in the pandemic?

There is no single answer to this. There were multiple factors that all came together in a ‘perfect storm’, resulting in an unmitigated disaster of disease spreading rife through our hospitals, the ambulance service, care homes, etc.

How does Covid spread between people?

Covid-19 is an airborne disease. As an infected person breathes out, speaks, coughs or sneezes they emit thousands of tiny droplets known as aerosols into the air around them. These aerosols contain the virus and any person who then inhales this air is at risk of catching the disease. There may also be some element of transmission due to a person touching contaminated surfaces and then touching their mouth, nose or eyes. On occasions, it is just conceivable that large ‘ballistic’ droplets (as they are called) may be expelled from a person’s nose or mouth while coughing or sneezing and just happen to land on another person's mouth nose or eyes, thereby initiating the disease.

We all remember the early days of the pandemic with Government’s reassuring messaging that “washing hands and singing happy birthday twice” was a good way to protect ourselves against the disease. While not decrying the benefits of good hand hygiene, this was dangerous misinformation in the extreme, the fallacy of which still persists in people’s minds to this day. Back then it perhaps served the Health Secretary’s purpose in preventing panic and a 'loo roll' type rush on face masks and respirators which were needed by doctors and nurses. One can only speculate how many lives could have been saved during the first wave had the public been told the truth about airborne transmission and how best to protect themselves. Happily, by the autumn of 2020, Government messaging had changed, emphasising the importance of opening windows to let the infectious aerosols escape. However, while the virus was accepted as 'airborne' in people’s homes, bizarrely it was 'not airborne' in hospital wards, ambulances, etc, and staff were still denied the necessary protection against an airborne disease.

Who are the main ‘actors’ in this story?

The ’IPC Cell’

A group of individuals, mostly from the Infection Prevention and Control (IPC) profession, whose identities have been kept a closely guarded secret. It is unclear how the individual members of the cell were selected or what selection criteria were used. A colleague’s FOI request revealed that 28 were from NHS England, 3 from Wales, 3 from Northern Ireland, 4 from Scotland and 3 from Public Health England (PHE)/UK Health Security Agency. They were mostly IPC nurses and doctors, with one or two having specialisms, such as microbiology and epidemiology, or representing particular professions, such as the ambulance service and dentistry. Curiously, the National Incident Director (Professor Sir Keith Willett) was identified as a member of the Cell, and played a pivotal role at the highest level and will have had oversight of the position regarding personal protective equipment (PPE) availability and shortages, but seemingly did not having a background or specialism in IPC. 

Bizarrely, within the IPC Cell there were no specialists in the fields of occupational hygiene or occupational health and safety; i.e. with training and competency in workplace risk assessment, management and control, or indeed competency in respiratory protective equipment (RPE). Neither were there any aerosol scientists or ventilation engineers in the Cell. It seems that the Health and Safety Executive (HSE), who would have been best positioned to specify PPE requirements for HCW protection, were either not invited to join the Cell or, if they were, declined the invitation.

The one-time Chair of the IPC Cell, Dr Lisa Ritchie, at a meeting with colleagues of mine in August 2022, is on record confirming that “at first, the IPC (Cell) had no experience of the hierarchy of controls, but it was a rapid learning curve”.

This is shocking. The ‘hierarchy of controls’ is the most fundamental, basic principle of health and safety management. It is something that is covered in even the most simple, entry-level health and safety training courses. If you don’t know about the hierarchy of controls then you are not a fit and proper person to undertake health and safety risk assessments, nor are you in a position to instruct others to do them when you don’t understand the basic principles yourself.

The IPC Cell produced the ’National IPC Guidance,’ which dictated the arrangements for health and safety of HCWs across the UK during the pandemic. Unlike most of the other groups and committees (SAGE, NERVTAG, etc) the IPC Cell never published minutes of their meetings. Attempts to obtain these minutes through FOI requests have been met with refusals, delays and obfuscation. Even now, the Department of Health and Social Care is refusing FOI requests for minutes of their top level ‘PPE Decision Making Committee’ meetings and have denied that such a committee ever existed.

The few sets of IPC Cell minutes which have trickled into the public domain from the midst of the second wave demonstrate that:

• these people had the power to reject PHE’s recommendations that FFP3 respirators should be used much more widely when providing care to infectious patients;
• they were concerned that if they were to change their advice, HCWs would realise they had been under protected in the past. This would mean that they (the IPC Cell members) could be held legally accountable for their previous wrongful advice. Indeed, many consider that they should still be. So HCWs continued to pay the price (some, the ultimate price) while Cell members ‘covered their backs’.

It is beyond belief that a group of people with such minimal understanding of occupational health and safety should be assigned the power and ‘life and death’ responsibility for the health and safety of over 1.2 million people working in the NHS confronting a lethal virus, let alone all those working in social and domiciliary care. Their performance during Covid-19 can only be described as an abject failure (witness the thousands of patient deaths and catastrophic levels of disease and death amongst HCWs). Some of these people still occupy positions of responsibility for IPC and this really does not bode well for the next pandemic whenever it may strike. For the future safety of the nation, the whole system (and the people within it) needs an overhaul.

IPC practitioners are members of an essential and well-respected profession. However, the conduct of some members of the IPC Cell, including the Chairs of the Cell from June 2020 onwards, Dr Ritchie and Dr Eleri Davies, have dealt the profession a hammer blow in respect of its reputation and credibility arising from their refusal to budge from their 'droplet dogma' and rejection of expert advice from PHE.

On 16 Sep 2024, I watched with utter incredulity at Dr Ritchie giving her evidence at the UK Covid-19 Inquiry. When challenged with Professor Beggs’ IPC expert evidence concerning airborne transmission of Covid-19, Dr Ritchie appeared to contradict him by stating that the epidemiology and scientific literature did not support airborne spread as the predominant mode of transmission and that the latest World Health Organization (WHO) guidance hadn’t changed in this respect.

Baroness Hallett questioned her closely on this point as she thought that WHO had changed their view on this. As can be seen in the video clip below, Dr Ritchie maintained her position, causing Baroness Hallett to apologise and admit she was at fault.

In fact it was Dr Ritchie at fault and Baroness Hallett who was correct. This definitive document, whose self-explanatory title 'Indoor airborne risk assessment' sets out a description of the airborne transmission mechanism of SARS-CoV-2 (page 7): "The high viral load percentile is comparable to the evidence observed in literature for outbreaks with (long-range) airborne transmission identified as the main mode of transmission". It is a simple scientific fact that the concentration of aerosols giving rise to this long range risk will be very much greater within 1 metre of the patient where HCWs are delivering direct care. This is why they must have respiratory protection.

Given Dr Ritchie's position as Deputy Director of Infection Prevention and Control, a failure to understand the basic principles of transmission as currently defined by WHO is extremely disturbing.

The Health and Safety Executive (HSE)

HSE is the regulatory organisation whose statutory role is to ensure that employers properly safeguard the health and safety of employees. They have the power to prosecute offenders and numerous other enforcement options.

They knew that Covid-19 was an airborne-transmissible disease. They also knew that the fluid resistant surgical masks (FRSMs) which the IPC Cell insisted must be worn when providing close-quarter care of infectious patients, would be ineffective protection and put wearers at risk of the disease and death. Instead of asserting their moral and legal authority they abandoned HCWs to their fate, leaving them at the mercy of the IPC Cell and their flawed guidance.

Healthcare workers and patients

The third parties in this story are, of course, the doctors, nurses, midwives, paramedics, porters, healthcare assistants, cleaners—all healthcare workers, the list is endless. And, most importantly, the patients who went into hospital for various reasons other than Covid in the expectation of being made better, but who acquired Covid while in hospital and who died in their thousands.

IPC guidance: The early days of the pandemic

Through January and February 2020, IPC guidance specified that HCWs must wear respirators such as FFP3s when dealing with suspected or confirmed Covid cases. This was in line with health and safety rules for airborne high consequence infectious diseases (HCIDs), such as this new virus, SARS-CoV-2.

However, on 31 Jan 2020 the IPC Cell approached the HSE to sound them out about reducing the level of protection down to FRSM for GPs and others in primary care. It appears from email correspondence at the time that the IPC representative told HSE that they had undertaken a risk assessment that had concluded that the use of FRSM, rather than full RPE, would be appropriate.

Despite further FOI requests, no copy of that risk assessment has ever been forthcoming. This raises a question as to whether it ever existed at all. According to health and safety law, risk assessments concerning employee safety must be recorded in writing and communicated to workers whom they might affect. HSE would surely have needed to see it before confirming that they approved it, saying that they considered it to be “proportionate and practical”.

Where an organisation claims to have done a 'risk assessment’ but it has never been formally recorded, these are referred to as ghost assessments because, in the eyes of the law, they were never done. Organisations simply say they have done a risk assessment so as to purport that there is some credible basis for the things that they want to do. In reality, they are little more than a smoke screen to justify decisions made by a handful of people wishing to downgrade health and safety measures for political, economic or other reasons, while lending them an air of credibility, authority and competency.

It is one of the worst forms of deception. It is also morally and ethically unconscionable when people’s lives are at stake. In time of pandemic, when the country needs its HCWs to be at work, caring for their patients and not off sick, such a move is particularly reckless and negligent.

In early March, at the request of Professor Chris Whitty (Chief Medical Officer, England), economies had to be made to conserve dwindling stocks of FFP3s. HCWs were only allowed FFP3s when caring for patients who were positively confirmed to have the disease. FRSMs would be worn when caring for those showing symptoms but not yet confirmed.

A week later, with stocks of FFP3s now running perilously low, the guidance changed yet again, this time denying virtually all HCWs the respiratory protection they needed to keep them safe. Instead they were issued with FRSMs. These brave people were quite rightly hailed as our frontline heroes in the war against the virus. However, equipping them with these flimsy masks, which are not even designated as PPE under UK safety legislation, was equivalent to sending frontline soldiers into battle with blanks in their rifles. They wouldn’t know they couldn’t protect themselves until it was too late.

The IPC Guidance in March 2020 read “A FRSM must be worn when working in close contact (within 1 metre) of a patient with COVID-19 symptoms”. The word 'must' made this mandatory—an instruction which NHS Health Trusts and Health Boards were required to obey. Some commentators may interpret it as an instruction to expose their staff to mortal danger through inhalation of virus with the associated risk of disease and death—in direct contravention of health, safety and human rights legislation. This instruction continued right through until June 2021.

PHE was officially designated as the lead Government department for the UK response to the pandemic emergency. Why was their advice not heeded? What authority did IPC Cell members have over PHE? Who assigned them that authority and why? Why would they not change their advice to recommend effective respiratory protection in the face of the more transmissible and dangerous ‘Kent’/’Alpha’ variant?

Why was the HSE so impotent? Was it the decision of their Directors and Chief Executive to abandon health and safety law and enforce against the flawed IPC guidance instead?

IPC guidance from June 2021: Risk assessment for respiratory protection

Up until June 2021, the IPC guidance continued with the mandatory “must wear FRSMs” instruction and then a change happened. Perhaps by virtue of the fact that HSE, PHE, MPs and Ministers were coming under increasing pressure from professional bodies such as the BMA, Royal College of Nursing (RCN) and the AGP Alliance (now CATA) to recognise that IPC guidance was deeply flawed and out of step with health and safety legislation. So, for the first time, 18 months into the pandemic, the concept of risk assessment was introduced in connection with decisions about whether or not RPE should be worn.

Although risk assessment had been mentioned in earlier versions of the guidance, that was more in terms of assessing the vulnerability of individuals (pregnancy, age, immunosuppressed, etc) or whether or not eye/face protection should be worn—all of which are fairly straightforward forms of risk assessment.

This version introduced the text “Organisations should undertake local risk assessments based on the measures as prioritised in the hierarchy of controls. If an unacceptable risk of transmission remains following this risk assessment, it may be necessary to consider the extended use of RPE for patient care in specific situations”. At first sight this does not seem unreasonable since, in many parts of a hospital building and for a considerable number of activities carried on there, the ‘hierarchy of risk controls’ can indeed be applied:

However, the one massive flaw in this thinking relates to the single most common task undertaken millions of times a day by HCWs across the UK. That is the provision of close-quarter, direct care of patients. This is where the plume of exhaled breath from the infectious patient intermingles with the breathing zone of the HCW caring for them. At this point, none of the controls higher in the hierarchy apply—not even ventilation, since normal room ventilation does not create air movement at sufficient velocity to clear away the plume. We are left with the only option of PPE; in this case, specifically RPE to protect against inhaling the airborne virus.

In the video clip below [0min:32s] we see one of HSE’s most distinguished microbiologists being interviewed on the subject of PPE for healthcare workers caring for patients during a pandemic. He explains that "PPE is their last (and only) line of defence against exposure to the pathogen". This is equally applicable to Covid-19 and any similar disease that presents a serious danger to health and may prove fatal or have serious long-term health effects.

Risk assessment for RPE: The ’Catch-22’ situation

So the situation we had arrived at in June 2021 was that local NHS Trusts/Boards had been given a task that was impossible; i.e., if we have a patient known to have the disease (or suspected through symptoms and local prevalence in the community) then it is not humanly possible to undertake a suitable and sufficient risk assessment (the legal requirement for risk assessment) that can reliably inform a decision as to whether RPE should be worn as opposed to FRSM. You’ll recall my earlier comment that risk assessment starts by identifying a hazard and, if you cannot do this, then you cannot do a risk assessment. Under this scenario:

• You cannot detect the presence of infectious aerosols in the air by any of the human senses (sight, smell, etc).
• You cannot measure the concentration of the infectious agent (SARS-CoV-2) in the air by any monitor, meter or any other instrument (as you can do with toxic gases, vapours, dusts and fibres).
• The effect of infection upon the worker cannot be reliably predicted. Even young, healthy, non-pregnant healthcare workers can (and have) become seriously ill with Covid-19, with many going on to either die or develop serious chronic complications (Long Covid).

So what is one to do in this ‘Catch-22’ situation? Well, as with any major health and safety issue, you look to the regulatory and advisory body to give official guidance, i.e., the HSE. However, none was ever forthcoming. HSE provides excellent guidance for most sectors of industry, but when it came to providing this crucial guidance for nurses, doctors, paramedics, etc, they failed to produce any. This was strange because, for similar viruses like SARS-CoV-1 (2002-03), they stated that FFP3 respirators should be worn whereas they remained silent in respect of SARS-CoV-2.

So, at the HSE’s general meeting (26 July 2022) a representative of the RCN asked a very specific question on this exact point. The question and answer by Mr Richard Brunt (HSE Director) can be seen in the video clip below [2m:27s].

Given the unsatisfactory, vague and evasive response in which he completely side-stepped the question, another RCN colleague pressed the point further, seeking some sort of clarity from HSE. The question and answer by Mr Brunt can be seen in the video clip below [1m:43s]. Mr Brunt concluded his brief and, once again, evasive answer by confirming his view that it was down to “local risk assessment”.

A further question was asked by the Chief Executive of the Society of Occupational Medicine who raised the point about the much higher death rates amongst health and social care workers and concern about the variation in risk assessment and the need for better oversight by HSE that had been somewhat chaotic. The question and answer by Mr Philip White, HSE Director, can be seen in the video clip below [5m:30s].

One further point of interest from this same meeting was a most extraordinary remark by the HSE Chief Executive, Ms Sarah Albon. In this short clip she describes one of their key objectives in respect of safety communication with workers. This can be seen in the video below [0m:22s].

.Although this comment was not made specifically in the context of healthcare, I suspect it will strike a chord with the thousands of HCWs who were on the receiving end of the “really really good communications” to which Ms Albon referred, which had reassured them that surgical masks would keep them safe against the virus…

Following on from Mr Brunt’s comment about leaving RPE decisions to “local risk assessment” this letter was sent to him asking how the HSE, with all its experts in risk assessment, would itself carry out such a risk assessment of close-quarter care being given to an infectious patient. The key question raised in this letter is reproduced in Figure 1 below:

Figure1: Question put to Mr Brunt in letter 11 August 2022

Predictably, no reply was received and, despite further chasing, two years later still no reply has been received from which the only conclusion that can be drawn is that, like me, they very well know that such a risk assessment is an impossible task. If that is not the case, then let them or their IPC colleagues prepare and publish a risk assessment methodology that is suitable and sufficient to determine whether or not RPE should be worn by the HCW at close range of an infectious patient. IF they are able to do this, which I very much doubt, then perhaps they would explain why they didn’t publish it back in June 2021 when it was most needed.

Fast forward two years and Mr Brunt is giving evidence to the UK Covid-19 Public Inquiry. As shown in the video below [9m:15s], Mr Stephen Simblet KC, Counsel for the Covid-19 Airborne Transmission Alliance, is questioning Mr Brunt about that same meeting and asking some pertinent questions relating to the points raised by RCN/ SOM colleagues, to which Mr Brunt provides evasive answers.

During the questioning, Baroness Hallett (Inquiry Chair) interposes a searching question as to why HSE relied upon IPC Cell guidance when they knew that the disease was airborne and they also knew that fluid-resistant surgical masks would not protect workers against an airborne disease? She also reminded him of HSE's statutory duty to protect the health and safety of three-quarters of a million frontline HCWs.

The final question put to Mr Brunt related to the central issue raised in this blog, and the letter sent two years ago (see above); i.e., that there is no realistic way for an individual HCW to carry out such a risk assessment. Mr Brunt skilfully sidestepped the question, saying that “he would agree entirely but it’s not their responsibility to carry out a risk assessment, it’s their employer’s”. So if we don’t expect the nurse, doctor, HCA, porter, etc, to do the risk assessment, it leaves the question of how ‘the employer’ is expected to carry out such a close-quarter risk assessment (i.e., their health and safety practitioner, IPC practitioner or the occupational health practitioner). It is an impossible task is it not?

Mr Brunt, himself a registered Safety Practitioner and member of the Institution of Occupational Safety and Health, could have offered the Inquiry a more helpful answer than just to say “it’s the employer’s responsibility”. His failure to properly engage with the question put to him suggests that, in reality, he agrees that such a risk assessment is a complete impossibility.

And so we are left with the question hanging in the air: Is this simply a question of this being ‘a risk assessment too far’?

“In good faith”

As time goes on, we may well hear more comments such as “difficult decisions” “made at pace” and “made in good faith”. We have already heard Sir Jeremy Farrar (Chief Scientific Advisor, World Health Organization) use the term in the context of WHO ‘experts’ dogmatically pronouncing that Covid-19 was definitely not airborne despite the clamour of experts telling them that it was. Despite the good faith remark, he acknowledged that if these people had made better decisions about aerosol transmission “that would have saved an enormous number of lives”.

The term good faith is a very clever one to use since, looking back over history, it could be made about any action, no matter how heinous it was or how horrendous the consequences. The intention is to make anyone who is minded to criticise the perpetrator feel guilty about voicing their concerns because “after all, they acted in good faith”!

We are likely to hear the term used again in connection with similar decisions made by the IPC Cell ‘experts’ who persistently denied the airborne route of transmission and ignored anyone who dared to say otherwise. There is no reason why Sir Jeremy’s comments cannot equally be applied to the UK situation; i.e., had the IPC Cell accepted airborne transmission earlier, it would have saved an enormous number of lives.

In the context of Covid-19 we should not allow ourselves to be duped by anyone playing the good faith (get-out-of-jail-free) card.

Ghost risk assessments

I referred earlier to health authorities purporting to have carried out risk assessment in order to justify the downgrading of safety precautions, especially where the proposed change may be controversial.

An example of this can be seen at the time when Government policy was “pandemic over – everyone get back to normal” and precautions such as 'universal masking' in hospitals and other healthcare premises was abandoned, despite the fact that healthcare-acquired infections of Covid-19 was still running at around 30%. Norfolk and Norwich University Hospitals NHS Foundation Trust was around the first to implement the change. As their press release confirmed, they announced that the decision had been taken following—you guessed it—"local risk assessment”. By way of a test, I submitted a FOI request to have sight of their local risk assessments. This was met with silence, which led to the suspicion that the press statement was untrue. After 16 months of chasing for an answer (which should, by law, be provided within 20 working days) and only after the Information Commissioners Office forced their hand, was a response received. The Trust was unable to produce any documented risk assessments. This rather illustrates the point about ghost risk assessments.

Reflection

I hope that you have found this blog thought-provoking as we remember those awful days at the height of the pandemic – the consequences of which still blight so many peoples’ lives today. Sadly, of course Covid is not over, despite the Government and the media continuously referring to it in the past tense. We know that repeat infections increase the risk of Long Covid even if the acute stage of the disease doesn’t hit too hard. The long term effects (especially on children in the years and decades to come) are not well known. However, all the information I have seen suggests that our current lackadaisical approach to the disease could be a ticking time-bomb, with future generations looking back on us with incredulity, asking “why did they not do more to protect us?"

In this blog, I have focussed mostly on just two organisations (IPC Cell, HSE) but there are so many other people involved that warrant scrutiny. However, I would like to finish by addressing a particularly important issue.

I listened attentively as Ms Carey KC, Counsel to the UK Covid Public Inquiry, concluded her excellent opening statement on 9 September 2024. She condemned the abuse, insults and threats to which some public servants and even their families have been subjected. That is horrendous and I absolutely share that condemnation. As Ms Carey went on to say, this doesn’t mean that their decisions should not be scrutinised so that opinions can be formed.

Where appropriate, there are a number of sanctions that can be applied, which are more in keeping with civilised society than insults and threats. We have recently seen, in the case of Rev Paula Vennells (formerly CBE), in the Post Office scandal how individuals whose acts or omissions were so gross that it called into question their fitness to continue holding medals or other honours that the nation has bestowed upon them. Fitness to continue serving in their current jobs may also be called into question if their past performance is shown to have been inept.

Finally, there is the ultimate sanction of prosecution if any acts or omissions were in breach of the law. However, in reaching any such decisions, the Crown Prosecution (or other enforcement agency) is required to apply ’the public interest test’. To my mind, one of the factors that would need to be considered is the consequences for the next pandemic. Would it be in the country’s best interests for all our scientific and medical leaders to quit their jobs as soon as a new pandemic emerges on the grounds that their predecessors were hauled before the Courts? On that possibly controversial note I will end this blog.

Further reading on the hub:

• Respiratory protective equipment: An unequal solution for healthcare workers? A blog by David Osborn
• The pandemic – questions around Government governance: a blog from David Osborn
• Raising concerns about PPE and ventilation as a Junior Doctor, a blog by Lindsay Fraser-Moodie
• PPE guidance continues to put staff and patients at risk, by Dr David Tomlinson

The opening sequence of the new ITV drama, Breathtaking,  shows Dr Abbey Henderson failing a ‘face fit test’ when using a FFP3 respirator during the Covid pandemic. The explanation by the person carrying out the test "...these FFP3s are made for wider jaws" and Dr Henderson’s comment in return "...life-saving for men!" ring true – i.e., with a respirator that didn’t provide a tight fit to her face she was endangered by the airborne virus being able to enter the FFP3 and infect her. This short clip from the TV drama exposes a major failing in the provision of tight-fitting RPE for healthcare workers during the pandemic.

The 'Sheffield Dummy Head'

With no offence to white men living in Sheffield, let me introduce the 'Sheffield Dummy Head'

Source: Scince Purge Technology

FFP3 respirators must be tested and certified to conform to the standard BS EN 149:2001. This requires the FFP3 to be mounted on a Sheffield Dummy Head, which represents the facial features of a white male. The same dummy head is also used for BS EN 140:1999 which is the standard for a reusable type of tight-fitting RPE such as elastomeric half-masks. The use of this device for testing and certifying RPE dates back over 30 years.

It is illegal for PPE suppliers to sell RPE in the UK which does not conform to these standards. No provision was made during the pandemic planning process to cater for and protect other ethnic groups or females who have different facial characteristics (morphology). In a diverse working community such as the NHS this was a major omission.

There was also a failure to consider men of certain faiths who are required to have beards and other faiths where they choose to do so as a symbol of religious piety or devotion. Tight-fitting masks simply don’t provide an effective seal to the face when used with facial hair.

Therefore, we have to call into question the level of compliance with the Equality Act 2010 since, on the face of it, the omission to provide effective RPE protection for all workers regardless of gender, faith or ethnicity would appear to be a contravention of this legislation.

In my opinion, as a health and safety consultant, the biggest failing of all was the single-focus on FFP3 tight-fitting masks as RPE for the healthcare sector. I do not consider them at all appropriate for prolonged close-quarter care of infectious patients.

Powered Air Purifying Respirators (PAPRs)

FFP3s are uncomfortable, shouldn’t be worn for more than an hour and can cause facial irritation. PAPRs would be better, such as the PeRSo (Personal Respirator Southampton) developed by Southampton University in the height of the pandemic.

A fan pumps air through a high-grade HEPA filter worn on the belt and pipes it to the hood, providing a flow of purified, cooling air over the face. These devices are suitable for everyone regardless of gender, race or religion, and, because they are not tight-fitting, wearers do not have to undergo a ‘face-fit test’.

They also aid better communication with the patient compared with the FFP3 respirators or surgical masks as patients can see the HCW smile, lip-read, etc.

Images: Ric Gillams Photography, with permission from Professor Elkington. 

Although FFP3s still have a place for short, ad-hoc exposures to infectious patients, this is the way forward for future pandemics.

13 March 2020: A crucial day in the pandemic

HCWs who are left languishing with serious Long Covid conditions may feel that they have been badly let down by the above-mentioned failings and they may also wonder why the Health and Safety Executive (HSE), the statutory body responsible for health and safety management in the UK, allowed this to happen.

While not seeking to excuse the HSE’s failure to enforce the law in relation to PPE during the pandemic, the answer may lie in events up to a decade earlier when their requirement for healthcare workers to be protected with efficient respiratory protection was over-ruled by Government’s Health Departments who clearly had no respect for the HSE’s authority or the laws they sought to enforce.

Some insight into the background of this is revealed by a document recently released into the public domain by the UK Covid-19 Inquiry. This relates to an email dating back to January 2020 between two of the most prominent people who steered the country through one of the most crucial days of the pandemic.

The day was 13 March 2020 when two key events occurred:

• The NHS downgraded respiratory protection from RPE, such as FFP3 respirators, to flimsy surgical masks (which do not provide respiratory protection).
• The status of Covid-19 as a high consequence infectious disease (HCID) was revoked.

The two people involved were the then Deputy Chief Medical Officer, Professor Jonathan Van Tam, who, on 12 March 2020, had sent the new '4-Nations IPC guidance version 1.0' to the NHS and Public Health England, downgrading FFP3 to RPE; and Professor Tom Evans, Chair of the Advisory Council on Dangerous Pathogens (ACDP), the expert body that provides Government with advice about pathogens, who confirmed to Professor Van Tam that his committee no longer considered that Covid-19 should be classified as a HCID.

The email reveals that Professor Van Tam had personally advised the Department of Health on RPE since 2004. During this time, HSE had, quite properly, adopted the legal position that in the event of a pandemic HCW's safety must be assured by the wearing of efficient and properly certified RPE.

HSE had made it very clear that surgical masks were not classed as PPE and that they would not provide HCWs with adequate protection in a pandemic.

So although the HSE were demanding a maximum level of respiratory protection for HCWs, Professor Van Tam states very clearly that this was “neither affordable nor practical for pandemic stockpiling”. Therefore, Government policy was to ignore the representations of the HSE. They only established the stockpile with a quantity of RPE that they believed would be needed for use in intensive care units and when certain 'aerosol generating procedures' were carried out. Everyone else, from paramedics through to doctors, nurses and all healthcare staff working in high-risk settings, such as A&E and general wards with Covid patients, would only be given the flimsy surgical masks for their 'protection'.

The decision to set up the PPE stockpile on this basis was made in 2009 when the original stockpile was established after the swine flu outbreak, only a few months after the HSE had completed their research into PPE for pandemics confirming the unsuitability of surgical masks and asserting their requirement for RPE to be used in pandemics.

In 2016, the New and Emerging Respiratory Virus Threats Advisory Group (NERVTAG) established a subcommittee to provide the then Department of Health with scientific and clinical advice in order to set policy on the emergency PPE stockpile, with particular focus on the provision of respirators versus surgical masks.

The subcommittee, co-chaired by Dr Ben Killingley and Professor Jonathan Van Tam, advised the Department of Health that FFP3 respirators should only be provided for aerosol generating procedures, intensive care units and high dependency units. Crucially, the subcommittee specifically advised against the use of FFP3 respirators for other hospital settings (general wards, A&E, etc), ambulance staff and for social work.

Therefore, it came as no surprise when the pandemic reached the UK that HCWs caring for highly infectious patients in general wards, A&E, ambulances, etc, were denied the RPE that they so richly deserved as they put their lives on the line for us.

There simply wasn’t enough of the right types of RPE to go round due to flawed thinking and penny-pinching by the key decision makers.

A golden opportunity missed

Returning to the main theme of this blog, that same NERVTAG subcommittee had every opportunity to advise the Department of Health and Social Care that the stockpile of respirators should contain RPE that would be suitable for HCWs of all genders, ethnicity and faiths.

Another email released by the UK Covid-19 Inquiry reveals that subcommittee members were well aware that “not all devices [respirators] fit all face shapes and sizes” and “Face size and shape may vary across the world”. Given the NHS employs men and women and is a diverse community of different ethnicities and faiths, it would have been sensible to recommend to the Department of Health and Social Care that they should take this factor into account when considering their pandemic stockpile.

The future...

If we were to face another pandemic, will we have an adequate stockpile of suitable RPE and ‘in-house’ manufacturing capacity to support all our health and social care workers for the duration? 

Have lessons been learnt?

In April 2023, a blog published on the hub revealed the widespread under‑reporting of healthcare workers (HCWs) who had contracted Covid-19 through occupational exposure to SARS-CoV-2, despite this being a legal requirement under the ‘RIDDOR’ regulations.[2]

On the face of it, this seemed to have all the hallmarks of collusion between the UK Government’s Health Authorities and the Health and Safety Executive (HSE), which is responsible for ensuring that health and safety legislation (including RIDDOR) is properly implemented by all employers (including healthcare), and 82% of NHS Trusts and Health Boards failed to make even one single RIDDOR report.

Taking action

 LCD4A have now decided that enough is enough – where words and letters have failed, it is now time to stand up and take positive action. They have taken a giant leap forward by initiating group litigation (a 'class action') against those who failed to exercise the ‘duty of care’ that they owed to healthcare workers across the UK. Crucially, this action to achieve justice and expose their negligence is not just for doctors, but for all NHS healthcare workers who contracted the disease on the ‘Covid front line’ and have been significantly injured as a result.

If you are one of the thousands of ‘healthcare heroes’ whose lives have been blighted with the effects of Long Covid then the nation is indebted to you for your selfless bravery and service. You thoroughly deserve redress for the damage caused to your health, your career and any financial detriment you are suffering as a result.

It is a fundamental right of any person in the UK to seek reparation for wrong that has been done to them (known as a ‘tort’ in legal terms) in the civil courts. Wrong has certainly been done to you, so don’t hesitate to exercise your rights if this situation applies to you and click here and join the group litigation. Should you have any doubts as to whether this is the right thing to do, the following information may help inform your decision.

Transmission of the disease

Early in the pandemic it was well known that coronaviruses such as those which caused SARS and MERS were airborne; i.e., transmissible by tiny droplets known as aerosols. There was no reason whatsoever to presume that Covid-19 would be any different and no credible evidence has ever been presented to that effect.  

Evidence disclosed during the ongoing UK Covid-19 Inquiry has revealed that, as far back as January/February 2020, key scientists within UK Government knew very well that the disease was airborne. Accordingly ‘airborne precautions’ were recommended for healthcare workers, meaning that effective respiratory protective equipment (RPE) such as FFP3 respirators should be used.

However, as the pandemic spread across the world, the World Health Organization (WHO) began to vehemently deny any suggestion that Covid-19 was airborne. This was in the face of a storm of concern by some of the world’s foremost experts, including some of the most well-respected bioaerosol scientists in the world. However, WHO elected to ignore their representations.

One may wonder why this organisation would dismiss the evidence from acknowledged experts when the fate of millions of people (and particularly healthcare workers) was at stake.

By this time the UK and US governments knew that their stocks of RPE, manufacturing and procurement arrangements would be insufficient to equip their HCWs with the ‘airborne precautions’ needed to keep them safe. Any WHO designation of the pandemic disease as ‘airborne’ would undoubtedly cause problems in respect of healthcare workers’ reaction to being provided with lesser protection such as surgical masks. The extent to which WHO may have acquiesced to any influences brought to bear by member nations may never be known. 

In 2020 there unfolded what can only be described as one of the most bizarre self‑contradictions in the history of mankind! On the one hand, we had UK Government public information broadcasts vividly depicting airborne transmission of the virus with it floating in the air, wafting from person to person. But on the other hand, HCWs were being told that the disease was not airborne, but spread by droplets that rapidly fall to the ground and will only infect you if they happen by chance to land on your nose, mouth or eyes.

This left doctors, nurses and everyone else extremely puzzled as to how the virus could be ‘airborne’ in someone’s home, endangering health while just chatting quietly with friends, whereas in a hospital ward or care home, with infectious patients coughing profusely and exhaling virus-containing aerosols with every breath they take, it was ‘not airborne’. This remarkable change in the virus’s properties twixt home and healthcare workplace has never been explained. Hopefully as we move towards module 3 of the UK Public Covid-19 Inquiry they will be required to explain themselves.

The government advert on the right, correctly illustrates how the virus-containing aerosols are more concentrated nearest to the source of emission, before dispersing around the room. This helps you to envisage how HCWs providing direct, close-contact care are exposed to the greatest concentrations of airborne virus. Normal ventilation and air-conditioning systems do not create sufficient air movement to disperse this localised plume of aerosol hanging in the air near to a person’s face, particularly if they are prone in bed or seated. This of course penetrates or bypasses the flimsy, loose-fitting surgical mask and enters the HCW’s mouth and nose where the virus can implant itself into the epithelial cells prior to spreading to the brain and the rest of the body.

The wrong personal protective equipment (PPE)

In the health and safety profession we are always taught that one of the most dangerous things you can ever do is to provide the wrong PPE for the hazard involved. That is because it lulls the wearer into a false sense of security. It causes them to believe they are protected and safe when in fact they are neither protected nor safe. If the hazard is undetectable by sight, smell, taste or any other sense (as is the case with aerosols containing the SARS‑CoV‑2 virus), then this renders the wearer highly vulnerable since the virus has free passage into the body. They will not even know that this has happened until the disease manifests itself in some way.

The poster below shows how the Government unequivocally told HCWs that fluid resistant surgical masks (FRSMs) were “Safe PPE”. That was untrue. They were neither 'safe' in terms of protecting HCWs from inhaling airborne virus, nor were they actually PPE.

Despite the widespread misuse of the term PPE by Government, NHS and the media, surgical masks are not and never have been classified as personal protective equipment by the regulatory and enforcement authority HSE, as shown on their website. 

At the same time, the UK Covid-19 Infection Prevention and Control (IPC) Cell for the NHS across the four nations was producing guidance, which mandated FRSMs for direct, close-quarter care of suspected or confirmed cases of Covid-19. Had they been less single-focused on their FRSM dogma and taken the trouble to consult their supplier NHS Procurement’s website, they would have found a very competent and comprehensive explanation of the different types of masks and respirators. This was displayed online from 29 April 2020 right through until 2022. Unlike the IPC guidance, it correctly stated that all types of surgical masks (including type IIR, FRSMs) “are for use in protecting others from the wearer transmitting infection” and “are not effective at protecting the wearer from airborne diseases such as coronavirus”.

Out of date RPE

When the availability of masks and respirators became critical in the early months of 2020 and withdrawals were made from the PPE stockpile, it was realised that much of it was way past its expiry date. The manufacturers’ expiration date had been over-labelled with future dates. You may recall being reassured by Government officials that “stringent tests” had been carried out to ensure they were safe for use. These tests were organised by Public Health England together with the NHS Supply Chain. Evidence has been obtained that these “stringent tests” were not, in fact, “stringent” at all. HCWs were misled in this respect.

The UK Health Security Agency has refused Freedom of Information requests for the laboratory certification of these out-of-date RPE/masks. The HSE has not responded to a Freedom of Information request for their correspondence with Public Health England setting out the laboratory testing required to confirm that the equipment was still compliant with the relevant safety standard BS EN 149:2001.

Inspection of the one laboratory report that has been obtained revealed that critical “total inward leakage tests” had not been carried out to test the seals of the FFP3s. This was despite manufacturers’ warnings that the materials from which these are made degrade with time. It is one of the most important features of a respirator that it must not leak contaminated air inwards, either when it is donned or for the duration of time for which it is worn, because it is unlikely that the wearer will become aware of any leak. Another important factor is the integrity and elasticity of the straps, which also degrade with time. Any deterioration of the straps while in use can reduce the inward pressure with which the respirator seal is held to the face and, again, cause inward leakage. The laboratory was unable to evaluate the 'in‑use' factors and advised the NHS Supply Chain that they should seek certification of this from the manufacturers instead. There is no evidence that this was done.

 As mentioned previously, this whole situation arose from the 'non-airborne' fallacy. However, this could not survive forever against the wealth of evidence supporting airborne transmission and the dearth of evidence supporting their peculiar notion of ‘droplets’ being the main factor driving disease transmission. Besides, with a disproportionately large number of HCWs contracting Covid-19 and thousands of patients dying of hospital-acquired infection, it was patently obvious that their infection‑control measures were ineffective and that their guidance was flawed.

The World Health Organization apologises

During the autumn of 2022, two WHO’s top scientific officials admitted that their denial of airborne transmission had been a huge mistake:

Soumya Swaminathan (WHO Chief Scientist, retired November 2022) said: “We should have acknowledged aerosol transmission much earlier, based on the available evidence.         

“We were not forcefully saying ‘This is an airborne virus’. I regret we didn’t do this much much earlier”.[3]

And Jeremy Farrar (Swaminathan's successor as WHO Chief Scientist), when interviewed by a German news site and asked: "But even the World Health Organization didn't take the spread via aerosols seriously and didn’t issue a warning about it until the autumn of 2020...", replied: "Yes, you are right, that was a very big mistake. We could have prepared better if bigger decisions would have been made around aerosols, around face masks, around the best treatment options, personal protective equipment for nurses, doctors, about the capacity for intensive care units. That would have saved an enormous number of lives".[4]

While these admissions and apologies are somewhat gratifying to all of us who knew that WHO were wrong all along, they must be a bitter pill to swallow for HCWs who were on the Covid frontline and who have been harmed by their entrenched ‘anti-airborne’ narrative.

But not the UK

One might reasonably have expected some sort of similar apology from key individuals in the British health authorities who proliferated the anti-airborne doctrine in the UK, entrenching it firmly into the four-nations IPC guidance and taking away respiratory protection on 13 March 2020. But no – not a word of apology! Perhaps too many personal reputations at stake to 'do the right thing'?

Most galling of all is that, in the midst of the second wave, Public Health England were recommending to members of the IPC Cell that FFP3 respirators should be worn in all medium-to-high risk pathways (irrespective of aerosol generating procedures) due to the increased risk of airborne transmission. However, there was a feeling amongst Cell members that if they were to change tack and move towards wider use of FFP3 respirators, HCWs might think that they hadn’t been properly protected by their previous FRSM guidance. So, despite the fact that Public Health England were the Government-designated 'lead authority', the IPC Cell had the effrontery to ride rough-shod over their recommendations. While many of those responsible for the IPC guidance now proudly hold national honours for their services to healthcare during Covid-19, HCWs are left counting the cost with shattered lives and dreams.

Those who sought to have Covid-19 recognised as 'occupational exposure' and reported under the RIDDOR health and safety regulations were adamantly denied. When some health Trusts/Boards attempted to report cases they genuinely considered were occupational exposure, the HSE pushed back and refused to accept them. Under the regulations it is the employer’s “responsible person” who decides whether or not to report. It is not the HSE’s decision and there is no provision within the regulations for them to reject reports or instruct duty-holders not to report.

It is now known that this followed 'behind closed doors' discussions about RIDDOR-reporting that took place between the HSE and the Department of Health and Social Care. The Chief Executive of HSE has refused to reveal what was discussed in those covert discussions. In justifying her reason for refusing to disclose this information (even to Members of Parliament), she cited “legal privilege”.

 “Legal privilege” is something that organisations can hide behind when their lawyers anticipate that they may need to defend against personal injury claims (for instance, healthcare workers claiming for injury through occupational exposure to a highly dangerous virus, left unprotected by failures in PPE policy and provision).

Readers will remember those dark days in 2020, when millions of UK citizens stood at their doorsteps clapping for carers, ringing bells and painting rainbows in their windows. In sharp contrast it seems that civil servants and lawyers were actively discussing means of suppressing statutory requirements for recording employees’ occupational exposure to the virus and thereby thwarting their route to compensation. In time this may come to be viewed as an “affront to justice”, not dissimilar to that which was highlighted in the recent BBC drama concerning the Post Office scandal.

We need to keep firmly in mind that health and safety legislation (including RIDDOR) has been put in place by the will of Parliament for the benefit of workers, not for the benefit of the HSE nor Government departments who have no legal or moral authority to override or annul statutes of Parliament.

Conclusion

If you had doubts about whether to join the group litigation initiative, I hope you will now have a better idea about the ’rights and wrongs’ of the situation and be able to reach a decision.

All NHS healthcare workers who have caught Covid-19 at work and suffered injury as a result are invited to join the group litigation. For clarity, this action is open to all healthcare workers in all four nations. Those interested to join are encouraged to contact the relevant firm in a timely manner. The firm will help assess the legal merits of your case. Cases are being run on a ‘no win, no fee basis’.

Once again, if you want to take a step towards the justice you so deserve click here to see LCD4A details of the scheme.

References

1. BMA. First major survey of doctors with Long Covid reveals debilitating impact on health, life and work. British Medical Association, 4 July 2023.
2. David Osborn. "Forgotten heroes" – the sequel: a blog and resources from David Osborn. Patient Safety Learning, 19 April 2023.
3. Noyce E. World Health Organisation chief admits key error it made at start of Covid outbreak. The Independent, 24 November 2022.
4. von Bredow R, Hackenbroch V. “I Fear We Are at the Beginning of an Era of Pandemics”. SPIEGEL International, 26 October 2022.

The letter goes on to outline the concern that there has been a lack of stakeholder engagement in recent months to inform updates to the IPC Manual. The latest update on 25 October 2023 does not change the recommended PPE for routine care of a patient with COVID-19, although does include a new footnote seven which concerns patients with undiagnosed respiratory illness where coughing and sneezing are significant features but does not mention Covid-19 or provide guidance on recommended PPE or RPE. The letter seeks clarity from NHS England about how stakeholders can engage with this process to help inform future revisions of the manual and ensure the guidance is clear and recommends adequate protection for healthcare workers.

Related reading on the hub:

• The pandemic – questions around Government governance: a blog from David Osborn
• "Forgotten heroes" – the sequel: a blog and resources from David Osborn

The hypothetical scenario

In the wake of the SARS outbreak (Severe Acute Respiratory Syndrome) in 2003, an enlightened Chief Scientific Advisor set a plan in motion to prepare the country for a major pandemic. All epidemiologists worth their salt knew that this was inevitable and would happen one day.

Thoughts began to turn towards how HCWs should be protected while caring for infected patients. After all, if large numbers of them became infected then who would look after the rest of us? The health service would most likely be overwhelmed and the country would be thrown into chaos and civil disorder.

So a laboratory run by scientists from the country’s foremost health and safety regulatory body undertook some research to discover how well the standard surgical masks (‘medical masks’) would fare in a pandemic. The results were unambiguous – “badly”!

The scientists found live viruses behind every surgical mask tested, including fluid resistant surgical masks (FRSMs), when presented with an artificially generated sneeze or cough. The scientists were quite clear in recommending that HCWs should wear respiratory protective equipment (RPE) in order to be properly protected against inhalation of harmful (pathogenic) viruses in the event of a pandemic.

There are several types of RPE, the disposable respirator known as FFP3 (filtering facepiece) and some other reusable types as well, which give good protection.

Not long afterwards, the 'Swine flu' pandemic raced across the world. This triggered the Government to invest in a massive stockpile of RPE. As the years rolled by, this equipment reached its expiry date but, instead of renewing them, stickers were over the expiry dates extending their life after what were called ‘stringent tests’.

One has to question how ‘stringent’, when it is known that some of the materials from which they are made degrade over time and this impairs their efficiency. Tests (even ‘stringent’ ones) can only show how a mask performs at the time of the test and not predict how it will perform in a few years’ time.

Manufacturers assign an ‘expiry date’ for a very good reason – when used beyond that date they may fail in such a way that the wearer is unwittingly inhaling the hazardous airborne materials, such as dusts or virus-laden aerosols from which they thought they were being protected. Or, also dangerous, bits of the degrading mask may be inhaled by the wearer presenting a choking hazard.

Around that same time. some of the health department’s experts that concluded that SARS coronaviruses were transmitted by droplets and the airborne route via aerosols and tiny particles known as 'droplet nuclei'. They recommended that RPE such as FFP3 respirators should be used when providing routine care to infectious patients.

The years passed by and the stockpile came up for review again. Experts from the Government’s health department met to decide what to do. After all, there would be a significant cost to the country in renewing the stockpile, most of which was well out of date.

The experts came up with a bright idea –- why not implement a process called 'stock rotation' where PPE would be withdrawn from the stockpile in good time before its expiry date and sent for use in the NHS, replacing it with new PPE. One might question why this simple process wasn't thought of back when the stockpile was first established – after all, it is a fairly commonplace practice in warehousing perishable goods with a shelf-life.

This group was fortunate in that it included one of the experts who had authored the above-mentioned paper. Curiously though, they decided that all general ward, community, ambulance and social care staff would only be equipped with FRSMs who they considered need not be protected with proper RPE. Perhaps their attention had wandered away from SARS and were focused on other respiratory diseases like flu (notwithstanding the massive loss of life these caused during the last century).

Roll forward a few more years and a SARS pandemic starts to spread out from a place called Wuhan in China with a virus that was 80% similar to its predecessor from 2003, which had been proven to spread by airborne/aerosol transmission..

The new disease was classified as an airborne HCID (high consequence infectious disease) for which the country’s health and safety rules required that HCWs be equipped with RPE (not surgical masks). The Director-General of the World Health Organization (WHO) announces to the world that the disease was airborne (although apparently ‘not in a military sense’ which is a little difficult to understand). A senior medical officer tells a committee of politicians that the disease approaching the country had a very strong force of transmission and is airborne.

Then the pandemic arrived in the country, after having wreaked havoc with health services elsewhere in Europe.

However, what the pandemic planners did not seem to have taken into account was that the health and safety rules associated with HCIDs required that RPE must be worn by healthcare workers when caring for infectious patients and now the stockpile of respirators was far too low. With not enough respirators to go round, what on earth was to be done?

A Government Committee met to consider this dilemma. Two of the experts were present who had authored the paper mentioned above which had explicitly stated that RPE should be worn for SARS coronaviruses, and one of these experts had made the fateful recommendations about the PPE stockpile. This must have all been terribly embarrassing. Anyway they came up with a pragmatic answer to the problem.

Solution:

• Declassify the disease so it isn’t an HCID any more. Done with a phone call to the right person and a quick confirmatory letter back from them. The disease was no longer ‘high consequence’ (just two days after a global pandemic had been declared by the WHO and the worldwide death toll was on a sharp upward trajectory).

But oh dear! There is still a problem.

Regardless of any HCID rules, the country’s health and safety laws say that if a hazard is airborne then RPE is required (which, as we know, does not include these paper surgical masks). The emergency pandemic legislation brought in by the country’s government had not repealed, revoked or suspended any of the health and safety laws and so they were still in force. This, being 'criminal law' was something that people could be jailed for breaching.

Solution:

• Despite existing evidence that SARS coronaviruses (and other respiratory infectious diseases, such as tuberculosis) are transmissible via the airborne route, the health department pronounces that the virus causing the current pandemic is actually no longer airborne. They say that it is only transmissible via droplets that quickly fall to the ground or onto surfaces. They say that they will only cause infection if they land on someone’s mouth, nose or eyes or a person touches those surfaces and then touches their mouth, nose or eyes.

So the country’s response strategy centres around keeping people 2 metres apart and handwashing. The airborne route is largely ignored except for some HCWs who don’t believe them and buy their own RPE – only to be instructed by the hospital authorities to take them off (on pain of disciplinary) and put on surgical masks instead. After all, if they wore these respirators it might scare the patients.

But there is yet another problem. When any pathogenic viruses are ‘on the loose’ then the country’s health and safety law says that approved PPE must be worn to protect the wearer if no other, more effective risk control measures can be implemented. For administering close-quarter care to infectious patients no other risk control measures are practical other than PPE.

The problem is that surgical masks are not approved 'PPE'. They are designated as ‘medical devices’ which are intended to protect the patient from drops of mucus or saliva that may come out of a HCW’s nose or mouth and may infect the patient. Furthermore the European standard for surgical masks says that they are not intended for protection of the wearer.

Solution:

• We’ll call surgical masks 'PPE' anyway – after all the middle 'P' (protective) has a nice ring to it and should lead HCWs to believe they’re being protected (despite the underlying risk that they may be lulled into a false security and actually become more vulnerable as a result).

The health and safety regulator appears somewhat concerned by this turn of events and makes representations to the other Government departments and the NHS that they should refer to RPE (such as FFP3s) as 'respirators' not 'masks' in order to ensure that the distinction is properly understood. However, this is ignored and FFP3s continue to be referred to as 'masks. So you now have 'FFP3 masks' and 'surgical masks'. After all, one mask sounds much the same as another doesn’t it? After all, if you were to refer to one as a 'respirator' (which sounds much better and more efficient) and the other as a 'mask' (which doesn’t) then workers might begin to question why they are not being given the best protection.

Furthermore, all politicians, media and just about everyone else in the country started referring to surgical masks as PPE despite the fact that they are not. When concerns are raised with the safety regulator about this, their response is that, whilst they agree surgical masks are not PPE, the term PPE has now entered common parlance and it would be difficult, if not impossible, to reverse this. And so the myth that surgical masks are personal protective equipment persists to this day.

A few days after the ‘downgrade’ from RPE to surgical masks, with the first wave now really taking hold, a doctor in Accident and Emergency at one hospital describes their situation to a politician as carnage and chaos. They were distraught as they didn’t have any proper PPE and needed FFP3s. The doctor felt as though they were being thrown to the wolves. They thought it likely that some of them were going to die as a result.

Of course, sadly, that doctor was not wrong. Many did die. Many, many more became very ill with very serious and long-lasting health effects.

But where, one might ask, is that regulatory body that is supposed to ensure that workers are kept healthy, safe and properly protected against the hazards they’re working with? Well, they say that decisions about respirators and masks in healthcare sector have nothing whatsoever to do with them. They say that it is the country’s health department and the public health people who issue the guidance about mask-wearing in the healthcare sector. It is they who are responsible for these decisions.

Then another problem arises. Oh dear, don't health and safety laws just keep getting in the way when you’re trying to manage a pandemic!

For instance, there’s one which says that when a worker contracts a serious disease through their work (or dies of it), then it must be reported to that health and safety regulator as 'occupational exposure'. However, it wouldn’t be good for morale amongst healthcare workers if the true impact the disease was having upon them became widely known.

Neither would it be good for those people in the health department who had been responsible (and accountable) for decisions they made about the stockpile the instruction they had given to downgrade from respirators to surgical masks.

Solution:

• Discourage such reporting – ideally stop it altogether! Perhaps, when employers do make such reports, the safety regulator should reject them on the grounds that the healthcare workers probably didn’t catch their disease from the infectious patients they were working with (coughing their germs into the air around them) but more likely ‘out in the community’.

So these unfortunate healthcare workers have no official record made of their 'occupational exposure' to the disease and any such suggestion is vigorously denied by their employers. This has the potential to severely hamper those workers when, after a year of sick pay, they are unceremoniously sacked and may need evidence that their disablement was caused through their work.

Well, that brings us to the end of our hypothetical scenario.

What do you think? Truth or fiction?

Related reading:

Since the publication of this blog, A Byline Times' investigative journalist has delved deeper into the story and his findings, published here, provide more detail.

The decision by the Scottish Government to withdraw the coronavirus guidance for extended use of facemasks across health and social care is clearly a matter that has significant implications for the safety of health and social care workers.

It is a legal requirement under the Health and Safety at Work Act etc 1974 that employers (including Governments and their Health Boards) must do at least two things before implementing a change that may materially and substantially impact workers’ health and safety at work:

1. They must conduct a suitable and sufficient risk assessment of the proposed actions; and
2. They must consult with all employees or their elected representatives concerning the proposed change.

1. Risk assessment

To be “suitable and sufficient” the risk assessment for the abandonment of universal masking should have considered several factors such as:

• The fact that variants of the SARS-CoV-2 virus continue to evolve which are becoming more immune resistant and subject to vaccine escape.
• The opportunity for viruses to mutate in this way depends upon the sheer number of viruses in circulation within the population. The greater the number, then statistically the more likely it is that a variant could evolve with potential to partially or wholly defeat our current vaccines and greatly impair the nation’s recovery from the pandemic. It just takes for one single virus to mutate in a certain catastrophic way for this to happen – as will have been the case in Wuhan in 2019.
• Any responsible Government and Health Board should take all reasonably practicable steps to reduce the number of viruses circulating in the population, particularly in health and social care premises. The Scottish Government appears blind to this simple but important duty that it owes to the Scottish people and its healthcare workers in particular.
•  Evidence is emerging that cases of SARS-CoV-2 reinfection and associated hospitalisations and deaths have increased in relative frequency as new Omicron lineages have emerged with enhanced transmissibility or immune escape characteristics. The evidence also suggests that the time interval between repeat infections is decreasing, particularly (and rather peculiarly) amongst individuals who have previously been infected with the Alpha (‘Kent’) variant which arose during the second wave (winter 2020-21).  Many healthcare workers will have been infected during that period. The consequence is that these workers are (a) that these infections may recur more frequently and (b) are at greater risk from these repeat infections. It has long been established that each time a person is infected or reinfected with the SARS-CoV-2 virus they have a risk of developing Long Covid, which can have severe detrimental effect on their health and quality of life – sometimes causing debilitating, irreversible, long-term health conditions. The more times they become reinfected, the worse these conditions may be and the longer they may last.
• By law, the risk assessment must be recorded (on paper or electronically) and be made available to employees and their representatives immediately upon request.

I therefore call upon the Scottish Government to confirm whether or not such a risk assessment was undertaken before the decision was taken to abandon universal masking.

If one was done, then the Government and the Health Boards should publish it so that interested parties, such as the Coalition, can determine whether it has properly considered all relevant factors that have a direct bearing on the increased risk of healthcare worker infection and how they plan to mitigate that risk.

If no such risk assessment was done, either by the Government centrally or by its Health Boards, then they have acted recklessly and unlawfully.

2. Consultation

For clarity, the “consultation”, which is required by the Safety Representatives and Safety Committees Regulations 1977 and the Health and Safety (Consultation with Employees) Regulations 1996, has a very clear meaning. It means:

• a) providing employees, or their safety representatives, with all relevant information relating to any proposed change in health and safety arrangements (including giving them sight of any risk assessments) before that change is implemented;
• b) allowing the employees and their representatives sufficient time to discuss amongst themselves and seek any further advice they may need to inform an opinion about the change;
• c) the employer must then take account any the feedback that it receives.

These are serious matters. The UK Government and the devolved administrations, through inept planning for pandemics and the issue of seriously flawed guidance, failed to provide health and social care workers with the necessary PPE to prevent them inhaling airborne virus whilst they cared for highly infectious patients.

It is quite understandable that our brave healthcare workers are now so aggrieved by the Government’s decision. These are the same people for whom we, the public, stood and clapped so proudly at our doorsteps during those dark days. The chaotic state of the UK’s planning and preparedness for pandemics has been laid bare at the UK Covid-19 Public Inquiry. During future sessions, the Inquiry will receive evidence concerning the deception which was wrought upon healthcare workers that the flimsy paper masks they were given would keep them safe from the disease when health and safety law requires proper tested and certified respirators to be used (such as FFP3 and equivalent) when workers are exposed to dangerous microbiological hazards in their workplace.

Current World Health Organization guidance still advocates that universal masking policies in health and social care premises do still have their place in Governments’ armoury of defence measures to keep healthcare workers safe.

Given all that they have already been through, combined with the ongoing suffering that many of them are experiencing from the disease they have contracted whilst caring for us, surely it is now time for the Scottish Government to pay greater consideration and respect for their health and safety. Some commentators may view the abandonment of universal masking as the Government playing “Russian Roulette” with their health by "letting the virus rip" – as sadly it is likely to do as the autumn and winter seasons approach.

The BBC Panorama programme, Forgotten heroes of the Covid front line, touched on a number of important issues, which I will briefly summarise.

Transmission of the disease from person to person

The Government (and World Health Organization) claimed that Covid-19 was spread by droplets from the nose and mouth of infectious patients, which would quickly fall to ground within 2 metres. Many eminent scientists across the world warned that the disease is also spread by a more insidious mechanism known as 'airborne transmission'. This refers to tiny aerosols that hang in the air and can cause infection by inhalation. But these warning were ignored.

Protection of healthcare workers

It doesn’t take a rocket scientist or a competent epidemiologist to appreciate that these brave people were at considerable risk of catching Covid-19 themselves while caring for infectious patients in hospitals, residents in care homes, etc. We had all seen the news in February 2020 as the disease rampaged through Italy and noted, with considerable alarm, the number of healthcare workers who were dying from the disease.

The UK Government and health authorities had plenty of time to ensure that our healthcare workers were properly protected with the best possible equipment. But they weren’t. Instead of being provided with proper respirator masks, such as those known as FFP3s (Filtering Face‑Pieces), they were provided with flimsy surgical masks which (a) do not filter out the virus‑laden aerosols, and (b) do not provide a tight seal to the face, meaning that the aerosols can get in via the gaps around the edge. Anyone who has ever worn that type of mask and also wears glasses will have evidence of how the exhaled aerosols escape from the mask and mist up their glasses. What goes out, can come in…

To add insult to injury the authorities had the effrontery to refer to these masks as “personal protective equipment” (PPE), assuring workers that these would protect them from the disease.

For the avoidance of doubt: they are not designated as PPE under UK legislation. They never have been PPE and they are not fit for that purpose. Surgical masks do not protect against airborne hazards such as infectious aerosols. Those who recommended them for this purpose either knew that or should have known that.

The "unkindest cut of all”

As healthcare workers became infected with the disease, many NHS health trusts and health boards robustly denied that there was any possibility whatsoever that their infections could possibly have been associated with their work. “Nothing to do with us” they said (or words to that effect). Then, once those who were so badly afflicted with the after effects of the disease (known as Long Covid) had been off work for a certain length of time, they were unceremoniously sacked.

As the Panorama programme reveals, it is this “denial of occupational exposure” by the NHS which is the most hurtful and vile aspect of the treatment meted out to our “heroes of the Covid frontline”. It is nothing less than a national scandal.

As a society, we surely owe it to our healthcare workers who have been harmed in this way to support them through the difficulties that lie ahead of them. In many cases they will have the after effects of Covid-19 for the rest of their lives. We should never forget that their grievous situation has arisen through no fault of their own, but is directly attributable to their selfless bravery back in the darkest days of the pandemic and the misinformation they were given about PPE.

Help for health and social care workers

Earlier, I mentioned resources that may be of help to those health and social care workers who wish to stand up for themselves and demand that their cases of Covid-19 be recognised as  “occupational exposure” (as defined in UK law) and have their cases officially recorded and reported as required by health and safety legislation known as RIDDOR (The Reporting of Injuries Diseases and Dangerous Occurrences Regulations 2013).

There are two important points to remember:

1. You do not have to prove that the actual virus which triggered your disease entered your body at work rather than out in the community. It just has to be more likely than not (otherwise known as 'the balance of probabilities), which is easy to demonstrate, given the circumstances of the work at the time.
2. The excuses given by health trusts and health boards for not RIDDOR-reporting generally centre around claims that they were “following Government guidance” and “issued PPE in accordance with that guidance”. However this has no legal validity whatsoever.

Let’s take a look at what the RIDDOR actually require…

If a disease was (a) diagnosed by a doctor based on symptoms alone or, in the case of Covid-19, by a positive test result (since it was not always possible to see a doctor); and (b) was more likely than not caught through your work, then it is reportable. 

Whether the employee was given no PPE, the wrong PPE or the very best PPE, it is still reportable.

Whether the employer was or was not following official guidance, it is still reportable.

There is nothing whatsoever in these regulations that exempts an employer from making the statutory report on these grounds.

Four resources you may find useful

1. A letter sent to NHS Employers. This challenges the advice that NHS Employers issued in the form of a flow-diagram regarding RIDDOR-reporting and explains why it was flawed and bore little resemblance to the RIDDOR regulations. In fairness, upon receipt of this letter NHS Employers have replied confirming that they have removed the offending diagram and are now consulting with the Health and Safety Executive (HSE). 

• https://www.tridenthse.co.uk/riddor/Letter_NHS_Employers_2023-03-20.pdf

2.  A letter sent to HSE, which is overtly critical of the fact that they did not properly enforce RIDDOR reporting within the healthcare sector. Although this is a long letter, the intention was to set out an unassailable argument, based on the law, HSE guidance and the implementation of RIDDOR in other sectors of industry, as to why healthcare workers’ disease should be reported. The aim of this letter was not just to communicate these facts to the HSE (since they should already know them) but mainly to provide information and assistance to any affected healthcare workers who may wish to read them.

HSE have replied to this letter, giving the following explanation: “RIDDOR was originally drafted to capture single one-off unexpected events (accidents and incidents). It was not intended to be used in a pandemic involving thousands of instances of infection, where an employer may be required to make a judgement as to whether a worker caught the infection as a result of a workplace exposure or in the wider community.”

One would have hoped that the HSE would have a better understanding of the role of RIDDOR and its origins. The Regulations have never just been about 'accidents and incidents'. It has always been about diseases and long-term health issues – that is what the first 'D' in RIDDOR stands for. Neither has it been solely about 'capturing single one-off unexpected events', it has been about identifying trends that need further investigation. Dating back to HSE Guidance L.73 in 1995: “The [RIDDOR] reports alert the enforcing authorities to individual incidents. They also provide data which indicates how risks arise and show up trends.” Had RIDDOR-reporting been properly enforced trends would (or should) have been spotted in relation to overall infection-rates among healthcare workers.

In any event, I am not persuaded that this is a valid reason for denying recognition and official recording of 'occupational exposure' to a lethal disease against which our healthcare workers so valiantly battled at extreme risk to their own health. It only takes a few minutes to tap the relevant details into the online RIDDOR system for each case. It is not a lot to ask.

Interestingly, whereas my concern centres around under-reporting, HSE respond by saying that “they have found a significant amount of over-reporting”. I am lost for words! Please refer to the last page of my letter to them and make up your own minds.

• https://www.tridenthse.co.uk/riddor/Letter_HSE_2023-03-20.pdf

3.  In response to the flawed flow-diagram produced by NHS Employers, I have prepared my own flow-diagram setting out the way in which RIDDOR should have been (and should continue to be) implemented in the healthcare sector during the pandemic. I must emphasise that this diagram represents my own personal and professional interpretation of the reporting mechanism and has no official status.

HSE will undoubtedly push back on some aspects of this, particularly the aspects of worker-to-worker cross-infection within healthcare premises which their guidance states is non-reportable. I state that it is reportable and I give my reasons. I am pleased to note  that in their letter of reply they do not contest this point.

• https://www.tridenthse.co.uk/riddor/Flow_Diagram_2023-03-20.pdf

4. For healthcare workers with Long Covid, I have produced a template letter which you are welcome to download and adapt according to your own particular circumstances, with a view to sending it to your health trust, health board or other employer, setting out your reasoning as to why your case is, even now (may be a year or two after their initial infection), RIDDOR-reportable.

• https://www.tridenthse.co.uk/riddor/HCW_RIDDOR_Template_Letter.doc

I have also provided some guidance notes to assist you in using the template letter: https://www.tridenthse.co.uk/riddor/HCW_RIDDOR_Template_Letter_Notes.pdf.

Even if this letter fails to persuade the more intransigent health trusts/boards to RIDDOR-report (and one can anticipate them being instructed by HSE not to), such a letter may be helpful in demonstrating 'occupational exposure' in the event that they eventually become eligible for some form of State support which they so richly deserve.

Conclusions

Healthcare workers have not been, and are still not, treated fairly or ethically by the Government, their Departments and Agencies or their own employers. Health and Safety legislation is not being applied equitably between the healthcare sector and other industry sectors. This applies both to the regulations known as COSHH (relating to safe working with hazardous substances, including pathogenic organisms), where the basic requirements for respiratory protection have not been met, and RIDDOR (as described above), where it is basically a postcode lottery as to whether healthcare workers’ COVID-19 infections are recognised and recorded as 'occupational exposure' or not.

Going forward, to strike a more positive note, my greatest hope is that a just and fair arrangement is put in place to support those health and social care workers whose lives have been ruined through their selfless devotion to duty during the pandemic. It matters not whether this is achieved via the Industrial Injuries Disablement Benefit scheme or a bespoke scheme comparable with the Armed Forces Compensation Scheme for injured veterans. After all, throughout the pandemic we have referred to them as “frontline workers”.