Scottish Healthcare Workers Coalition statement on reinstating face masks across health and social care settings (July 2023)

Summary

As reported recently, the Scottish Healthcare Workers Coalition called upon the Scottish Government to reinstate 'universal masking' in health and social care settings. 

In this statement written in support of their campaign, an occupational safety and health practitioner, David Osborn, explains the legal requirements for risk assessments that the Government ought to have undertaken before reaching such a decision that exposes healthcare staff to the life-changing consequences associated with repeat Covid-19 infections. 

He also explains the legal duty of the Government to consult with workers before implementing changes that may affect their health and safety.

Neither duty (risk assessment nor prior consultation with workers) appears to have been well met, putting the Scottish Government and Health Boards in breach of UK-wide health and safety law. 

Content

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.