Prevention of Future Deaths reports · 2024
Regulation 28 report to prevent future deaths, reference 2024-0317, written 13 Jun 2024. A coroner writes one of these when an inquest reveals a risk that could cause further deaths unless something changes.
| Date of report | 13 Jun 2024 |
|---|---|
| Reference | 2024-0317 |
| Deceased | Graham Faulkner |
| Coroner | Elizabeth Wheeler |
| Coroner area | Cheshire |
| Category | Accident at Work and Health and Safety related deaths |
| Source | judiciary.uk record · original PDF |
| Responses published | 1 |
Text extracted from the PDF text layer. Reproduced verbatim, including the scan's own layout.
Regulation 28: REPORT TO PREVENT FUTURE DEATHS NOTE: This form is to be used after an inquest. REGULATION 28 REPORT TO PREVENT DEATHS THIS REPORT IS BEING SENT TO: Chief executive - Health and Safety Executive 1 CORONER I am Elizabeth WHEELER, Assistant Coroner for the coroner area of Cheshire 2 CORONER’S LEGAL POWERS I make this report under paragraph 7, Schedule 5, of the Coroners and Justice Act 2009 and regulations 28 and 29 of the Coroners (Investigations) Regulations 2013. 3 INVESTIGATION and INQUEST On 03 April 2019 I commenced an investigation into the death of Graham FAULKNER aged 64. The investigation concluded at the end of the inquest on 31 May 2024. The conclusion of the inquest was that: “Mr Faulkner died as a result of medical complications arising from an accident at work some years previously. This was contributed to by failures in the administration and management of the Permit to Work process and a lack of challenge, at all levels, around the use of PPE.” 4 CIRCUMSTANCES OF THE DEATH In October 2015 Mr Faulkner was exposed to caustic soda at work. Mr Faulkner was hospitalised approximately week later, in a serious condition. Within a month, his paraplegia had started. He was not discharged from hospital until 2017. He died in 2019 from the sequalae of his original injury ie exposure to caustic soda. 5 CORONER’S CONCERNS During the course of the investigation my inquiries revealed matters giving rise to concern. In my opinion there is a risk that future deaths could occur unless action is taken. In the circumstances it is my statutory duty to report to you. The MATTERS OF CONCERN are as follows: (brief summary of matters of concern) Summary: The absence any prompt investigation by the HSE to establish the relevant facts and potential gaps in process could have an impact upon the ability to learn from one death and so avoid other deaths. Regulation 28 – After Inquest Document Template Updated 30/07/2021 Further detail The incident occurred on 15 October 2015. The employer became aware of the incident shortly after 22 October 2015, but initially had limited details. The HSE were informed of the incident in early November 2015. The RIDDOR report to the HSE noted "Injury preventing the injured person from working for more than 7 days". Separate email correspondence to the HSE at around the same time informed the HSE that Mr Faulkner was in the ICU. By 4 November 2015, Mr Faulkner had developed paraplegia from the consequences of his initial injuries. Despite it being known to the HSE that Mr Faulkner had suffered some form of injury with serious consequences (ie ICU admission), the HSE did not investigate. Their records do not show a specific reason for this, but I am informed it did not meet the selection criteria. The selection criteria are dated 2014 and are still in place today. These 2014 criteria include incidents which engage the reporting requirements in RIDDOR 4(1). None of these criteria apply to Mr Faulkner. The investigation criteria does not include the criteria in RIDDOR 4(2) - namely "Where any person at work is incapacitated for routine work for more than seven consecutive days (excluding the day of the accident) because of an injury resulting from an accident arising out of or in connection with that work, …." It is unclear why the 2014 selection criteria apply to RIDDOR 4(1) and not to 4(2), when both engage statutory reporting criteria. It is unclear why the criteria in RIDDOR 4(1) do not include injuries resulting in paraplegia, given the life changing severity of such injuries. If the reason the 2014 selection criteria are relatively narrowly drafted is to avoid excessive expansion of the HSE's duties, it is unclear why there is not a "discretionary" criteria which would allow for investigations where the known facts would suggest that an investigation would be appropriate in accordance with the HSE's wider statutory functions and purpose. As a result of the HSE decision not to investigate in 2015, various evidence was either not obtained or is no longer in existence. The first witness statement accounts from many eye witnesses date to 2021 or 2022 - some 5 years or more after the events in question. This has meant that it is challenging to establish the facts that led to Mr Faulkner's injury. Issues that have been in dispute in the evidence have included when the exposure took place, where it took place, the PPE he was wearing and the instructions as to PPE on the permit to work. It is likely that many of these issues would be factually clear(er) if evidence had been obtained in 2015, shortly after the incident, when memories were fresher and Regulation 28 – After Inquest Document Template Updated 30/07/2021 various paperwork still in existence. The absence of any or any prompt investigation by the HSE to establish the relevant facts and potential gaps in process could have an impact upon the ability to learn from one death and so avoid other deaths. 6 ACTION SHOULD BE TAKEN In my opinion action should be taken to prevent future deaths and I believe you (and/or your organisation) have the power to take such action. 7 YOUR RESPONSE You are under a duty to respond to this report within 56 days of the date of this report, namely by July 26, 2024. I, the coroner, may extend the period. Your response must contain details of action taken or proposed to be taken, setting out the timetable for action. Otherwise you must explain why no action is proposed. 8 COPIES and PUBLICATION I have sent a copy of my report to the Chief Coroner and to the following Interested Persons - Mr Faulkner’s family - Industrial Chemicals Ltd (“ICL”) who may find it useful or of interest. I am also under a duty to send a copy of your response to the Chief Coroner and all interested persons who in my opinion should receive it. I may also send a copy of your response to any person who I believe may find it useful or of interest. The Chief Coroner may publish either or both in a complete or redacted or summary form. He may send a copy of this report to any person who he believes may find it useful or of interest. You may make representations to me, the coroner, at the time of your response about the release or the publication of your response by the Chief Coroner. 9 Dated: 13/06/2024 Elizabeth WHEELER Assistant Coroner for Cheshire Regulation 28 – After Inquest Document Template Updated 30/07/2021
1 response published against this report on judiciary.uk. A response is a body's written reply to the coroner's concerns; publication is at the discretion of the Chief Coroner's office, so an absent response does not mean nobody replied.
Ms Elizabeth Wheeler Assistant Coroner for Cheshire Cheshire Coroner Service Museum Street, Warrington, Cheshire, WA1 1JX Health and Safety Executive Health and Safety Executive Head of Operations CEMHD Unit 3 19 Ridgeway, 9 Quinton Business Park, Quinton Birmingham B32 1AL Date: 03 July 2024 Dear Madam, HSE RESPONSE TO PREVENTION OF FUTURE DEATHS REPORT FOLLOWING INQUEST TOUCHING ON THE DEATH OF GRAHAM FAULKNER IN 2019 Thank you for your Regulation 28 report to prevent further deaths dated 13th June 2024 , Chief Executive of the Health and Safety Executive (HSE), following addressed to the inquest touching on the death of Graham Faulkner. I have been asked to respond to you on the issues raised as I lead the operational teams that undertake inspections and investigations at major hazard sites such as that of Industrial Chemicals Limited (ICL), Thurrock. May I take this opportunity to once again pass on our condolences to Mr Faulkner’s family. 1. HSE investigation decision making HSE has previously communicated with your colleague Mr H Westerman (Assistant Coroner) during inquest preparation, however, I would like to explain a little further our decision making approach in relation to the incident to Mr Faulkner. The initial Reporting of Injuries, Diseases and Dangerous Occurrences report (RIDDOR) received from ICL on 10th November 2015, advised that the nature of the injury was a caustic burn to the foot leading to an absence from work for more than 7 days. As you correctly highlight this did not meet our Incident Selection Criteria and as such no HSE investigation was instigated. HSE did receive some limited further information from ICL regarding Mr Faulkner’s health in November 2015, however, this was not linked to the initial injury circumstances and at that time understood to be related to Mr Faulkner’s separate underlying health conditions. HSE received no further RIDDOR report or update from ICL confirming Mr Faulkner’s injury deterioration was due to the incident. Thus it was a very significant time later in 2019, following the death of Mr Faulkner, that the Police on behalf of Cheshire Coroner’s office, contacted HSE and notified us that sadly Mr Faulkner had passed away. Through initial discussions with the Police, HSE offered what limited information we had obtained from linked inspection enquiries at the site relating to the handling of caustic substances and confirmed to the Police that we had not conducted an investigation. We advised the Police that should more evidence come to light from their enquiries at that time HSE would of course review any decision. At that time HSE also conducted a further review of the original decision making around the incident selection criteria taken in 2015. This concluded that the incident selection procedure had been correctly applied given the limited information available at that time. We also considered whether there was any realistic possibility of conducting an investigation at that time in 2019, however concluded that unfortunately too much time had passed meaning key evidence was unavailable to be able to conduct a meaningful investigation. We updated both the Police and Coroner’s Office of that decision at that time. We also updated Mr Faulkner’s next of kin and more recently met them jointly with the Police, ahead of the inquest, to further respond to their questions. HSE’s Incident Selection Criteria(ISC) incidselcrits (hse.gov.uk) is a publicly available procedure which HSE uses to help guide it’s investigation resource to the most serious incidents. These as you highlight more often being the ones where there is more learning which can prevent future injuries. HSE is unable to investigate all incidents reported to it via the RIDDOR process and this triage approach has been successful in prioritising our investigation work over many years. Thus based on the information available to HSE in the early months following Mr Faulkner’s injury we feel that decision making reflects our incident selection criteria policy and thus we were unable to conduct a meaningful investigation at that time. 2. Incident Selection Criteria RIDDOR Categorisation You refer to Regulation 4(2) of the Reporting of Injuries, Diseases and Dangerous Occurrences 2013, and your perceived absence of this injury type from our Incident Selection Criteria. There is more information about the ISC’s application within HSE Investigation Procedure which is also publicly available at Investigation - Stage 2: Decide whether to investigate (hse.gov.uk). The ISC is focussed on RIDDOR reports under Regulation 4(1) to ensure highest injury type incidents are prioritised for investigation consideration. However, the ISC also includes an option at section 4 which allows for any type of RIDDOR to be considered for investigation should it indicate a likelihood serious breach of health and safety law. Thus our view is that the ISC already has the type of flexibility you are suggesting to help learn lessons from incidents where standards are far from where they should be, including linked to a Reg 4(2) notification. Unfortunately in the case of Mr Faulkner’s incident, it is less about having the means via the ISC to investigate, and more about information availability. In particular, not having the full information about the underlying cause for his deteriorating condition being linked to the incident. As HSE was not updated in a timely manner, a successful investigation could not be completed. Regardless of what incidents HSE decides to investigate, the primary duty is for employers to monitor and review the adequacy of control measures identified in their risk assessment to ensure they remain effective. Accident investigation is therefore an important part of an effective health and safety management system by employers. You highlight that ‘paraplegia’ is not specifically included within the specific Section 2 ISC categories, as I am sure you can appreciate this guidance cannot list all potential severe injuries. It focusses on the most common severe injuries based on HSE’s investigation experience. As part of HSE’s review of RIDDOR Regulations over the years in supporting the better regulation principles we have continued to streamline regulation details in line with government guidelines. 2 However, I can assure you that the Principal Inspectors who are reviewing such RIDDOR reports would not hesitate to consider paraplegia as being a severe injury just because it is not specifically listed. Our staff are trained to be pragmatic in the application of the ISC to ensure that we respond where appropriate to serious injury incidents and are not restricted solely by examples. HSE staff can seek advice from line managers should they be unsure of ISC application and regularly do so. HSE guidance is reviewed to reflect emerging issues and concerns in response to learning and recommendations following incidents. Reviewing our ISC approach has been a recent area of work for HSE and we are moving away from selecting incidents by harm outcome and instead selecting by risk. So although I have passed your suggestion for ‘paraplegia’ to be specifically named in the ISC to HSE’s policy team for consideration at the time of the next ISC review, it is likely that we will focus more in future on risk rather than injury. Thank you for raising your concerns with us. I hope this offers some further explanation behind HSE’s decision making and reassures you that HSE is making significant changes to help improve the effective prioritisation of incident investigation. However, on this occasion we are unable to take any further action to change our procedures. Yours faithfully, Head of Operations CEMHD Unit 3 HSE 3
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