This is a two-part article about legal aspects of safety in two overlapping areas of work relevant to occupational therapists: disability equipment and manual handling.
This first part, on safe use of equipment, considers negligence, consumer protection and health and safety at work law, including codes of practice, guidance and notices from bodies such as the Health and Safety Executive and the Medical Devices Agency. A number of common and relatively straightforward themes are picked out through what otherwise might appear to be a forbidding body of law; these are illustrated with practical examples.
It is argued that in judging whether a particular action or omission was unlawful and breached safety obligations, the courts do not generally resort to incomprehensible principles. Instead, they often, in effect, simply hold up a mirror to the professional(s) involved and ask whether reasonably competent or practicable steps were taken. To the extent that this is so, it is clear that avoidance of legal liability is very much more within the power of occupational therapists and their employer organisations than is often supposed and that such avoidance is consonant both with patient and client welfare and with good professional practice.
Get full access to this article
View all access options for this article.
References
1.
AlderseaP (1996) National prosthetic and wheelchair services report 1993–1996. London: College of Occupational Therapists.
2.
Andjelkovic v Capital Territory Health Commission (1987) (Supreme Court of the Australian Capital Territory Canberra, 25 August 1987: Reported on LEXIS).
3.
Audit Commission (2000) Fully equipped: The provision of equipment to older or disabled people by the NHS and social services in England. Abingdon: Bookpoint.
4.
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.
5.
Bolitho v City and Hackney Health Authority [1997] 4 All ER 771.
College of Occupational Therapists (2000) Code of ethics and professional conduct for occupational therapists. London: COT.
10.
Coltman v Bibby Tankers (Derbyshire, The) [1986] 2 All ER 65.
11.
Devilez v Boots (1962) 106 Sol J 552.
12.
DTI (1995a) General Product Safety Regulations 1994: Guidance for businesses, consumers and enforcement authorities. London: Department of Trade and Industry.
13.
DTI (1995b) Guide to the Consumer Protection Act 1987: Product liability and safety provisions. London: Department of Trade and Industry.
14.
DT (1987) Code of practice: The safety of passengers in wheelchairs on buses. London: Department of Transport.
15.
Edwards v National Coal Board [1949] 1 All ER 743.
16.
Grant v Australian Knitting Mills [1936] AC 85.
17.
HN(88)3. Procurement: Product liability. London: Department of Health and Social Security.
18.
HSC (1977) Guidance note GS8: Articles and substances for use at work. London: Health and Safety Commission.
19.
HSC (1990) Health and Safety Commission. A guide to the Health and Safety at Work Act 1974: Guidance on the Act. Sudbury: HSE Books.
20.
HSC (1998a) Health and Safety Commission. Safe use of work equipment: Provision and use of Work Equipment Regulations 1998, approved code of practice and guidance. Sudbury: HSE Books.
21.
HSC (1998b) Health and Safety Commission. Safe use of lifting equipment: Lifting Operations and Lifting Equipment Regulations 1998, approved code of practice. Sudbury: HSE Books.
22.
HSC (2000) Health and Safety Commission. Management of health and safety at work: Approved code of practice and guidance. Sudbury: HSE Books.
23.
HSC1998/200. Health Service Circular. Good practice in disability equipment services. London: Department of Health.
24.
HSC1999/053. Health Service Circular. For the record. London: Department of Health.
25.
HSE (1998) Health and Safety Executive. Manual handling: Manual Handling Operations Regulations 1992, guidance on regulations. Sudbury: HSE Books.
26.
HSE v Norfolk and Norwich Healthcare Trust (1998: Unreported).
27.
HSE v North Staffordshire Health Authority (1989: Unreported).
28.
HSE v Portsmouth and South East Hampshire Health Authority (1988: Unreported).
29.
HSE v Salford Community Healthcare (1994: Unreported).
30.
HSE v Sandwell Health Authority (1991: Unreported).
31.
Hunter v Hanley (1955) SC 200.
32.
HurwitzB (1998) Clinical guidelines and the law. Oxford: Radcliffe Medical Press.
33.
Knowles v Liverpool City Council [1993] 1 WLR 1428.
34.
LaingL (2000) Boy, 8, killed by his grandmother's chair. Daily Mail, 5 June, 28.
35.
Lancet (1992) Chariots of fear: Wheelchair related accidents. Lancet, 340, 1263.
36.
LGA 450/00. Health and Safety Executive: Advice to local authorities on electric riser and recliner chairs. London: Local Government Association, June 2000.
37.
MandelstamM (1999) Community care practice and the law. 2nd ed.London: Jessica Kingsley.
38.
Maynard v West Midlands RHA [1985] 1 All ER 635.
39.
McKay v Royal Inland Hospital (1965) 48 DLR 2d 665 (British Colombia Supreme Court).
40.
MDA (1995) Doing no harm. London: Medical Devices Agency.
41.
MDA (2000) Guidance on the safe transportation of wheelchair users seated in their wheelchairs (Draft). London: Medical Devices Agency.
42.
MDA DB9606. Wheelchair and vehicle passenger lifts: Safe working practices. London: Medical Devices Agency, 1996.
43.
MDA DB9801. Medical device and equipment management for hospital and community-based organisations. London: Medical Devices Agency, 1998.
44.
MDA DB9801/Supplement 1. Checks and tests for newly-delivered medical devices. London: Medical Devices Agency, 1999.
45.
MDA DB2000/02. Medical devices and equipment management: Repair and maintenance provision. London: Medical Devices Agency, 2000.
46.
MDA HN9418. Patient hoists: Band slings. London: Medical Devices Agency, 1994.
47.
MDA HN9711. Bedside rails (cot sides): Risk of entrapment. London: Medical Devices Agency, 1997.
48.
MDA HN2000/10. Bedside rails (cot sides): Risk of entrapment and asphyxiation. London: Medical Devices Agency, 2000.
49.
MDA SAB9402. Use of hospital bed safety sides. London: Medical Devices Agency, 1994.
50.
MDA SAB9415. Special care beds: Power failure alarm. London: Medical Devices Agency, 1994.
51.
MDA SN9507. Salford swivel walkers: Regular inspection and maintenance. London: Medical Devices Agency, 1995.
52.
MDA SN9604. Walking aids: Inspection and maintenance. London: Medical Devices Agency, 1996.
53.
MDA SN9828. Maxilift Patient Hoists. London: Medical Devices Agency, 1998.
MDA SN9932. Storage of sterile medical devices. London: Medical Devices Agency, 1999.
57.
MDA SN9933. Wheel chairs, seating and accessories: Inspection, maintenance and repair procedures. London: Medical Devices Agency, 1999.
58.
MDA SN9934. Wheelchair seating and wheelchair accessories: Inappropriate use. London: Medical Devices Agency, 1999.
59.
MDA SN9936. Bedside rails (cot sides) fitted with telescoping crossbars: Risk of movement and subsequent patient injury. London: Medical Devices Agency, 1999.
60.
MDA SN9937. Unwin wheelchair headrest: Risk of detachment. London: Medical Devices Agency, 1999.
61.
MDA SN9938. Patient lifting and transfer devices: ARJO strap stretchers. London: Medical Devices Agency, 1999.
62.
MDA SN2000(19). Electrically operated lift and recliner chairs. London: Medical Devices Agency.
63.
MulleyGP (1989) Standards of wheelchairs: Awful can only get better. British Medical Journal, 298, 1198–99.
64.
NAO (1999) National Audit Office. Management of medical equipment in NHS acute trusts in England. London: Stationery Office.
65.
NCC (1995) Unsafe products: How the Consumer Protection Act works for consumers. London: National Consumer Council.
