Too risky to care

A disabled woman has slept in her wheelchair for over a year because her local health authority has banned staff from lifting her in and out of bed, the High Court was recently told.

Lorraine Wolstenholme, 50, has multiple sclerosis, weighs only eight-and-a-half stone and is unable to get in or out of bed by herself. Her barrister told Mr Justice Ouseley how the nurses who assisted her to get out of bed were withdrawn by the trust in June 2002, because of the perceived dangers of lifting a woman with ‘very serious spasms’. The case has now been adjourned to mid-October, to give the Milton Keynes NHS Primary Care Trust time to reassess the dangers of lifting Ms Wolstenholme in light of a new report.

Although it might sound extraordinary that a women should have to take High Court proceedings in order to be lifted by a care worker into and out of her bed, Ms Wolstenholme is not the only person to have been denied this service. In February 2003, the High Court gave guidance on manual lifting policies in a case against East Sussex County Council, which had not permitted its care staff to lift two disabled adults (1). Publicity at the time suggested that a growing number of local councils and health authorities were instructing care workers and district nurses not to lift disabled and elderly people, for fear that their workers would hurt their backs (2).

Behind this problem lies a series of legal regulations that can be traced back to the European Community Framework Directive on Health and Safety of 1989. This directive required member states to adopt a much tougher approach to health and safety issues at work. The preamble emphasises the directive’s safety-at-all-costs approach, saying that it is ‘designed to guarantee the safety and health of workers’, with the objective of setting out general principles concerning ‘the elimination of risk and accident factors’.

In 1990, the European Council applied the tougher approach of the framework directive to the single issue of lifting (known as the Fourth Individual Directive). This permits manual lifting only where it is ‘unavoidable’ (3). The UK government gave effect to this directive with the Manual Handling Operations Regulations of 1992. These regulations require an employer to avoid the need for his employees to carry out manual lifts ‘so far as is reasonably practicable’ (4).

The ‘reasonably practicable’ test puts the onus on the employer to establish that manual lifts are necessary. And, as the ‘Guidance on the Regulations’ from the Health and Safety Executive (HSE) makes clear, the test is an onerous one requiring the employer to show why, for example, a treatment cannot be brought to a patient rather than the other way round. And if it cannot, then the employer must show, for example, that the cost of any alternative steps, such as installing automated lifting equipment in the patient’s home ‘would be grossly disproportionate’ to the benefit.

An employer could face considerable legal consequences for allowing employees to carry out lifts that are not ‘reasonably practicable’. Last year Mr Justice Simon found the Newham Healthcare NHS Trust to be in breach of its duties under the Regulations after finding that there were ‘real risks of injury inherent in the Drag lift’, which was the method of moving patients habitually used in the hospital where the claimant worked. The claimant won damages of £415,000 arising from her injured back (5).

In addition to civil penalties employers could also be prosecuted, as Ms Wolstenholme’s local health trust discovered in October 2001. The HSE made an unplanned visit and served a notice on the Milton Keynes Primary Care Trust, requiring it ‘to ensure, so far as reasonably practicable, that staff are not exposed to risks arising in the course of their work from moving and handling people’ (6).

There is, of course, nothing new about health and safety legislation, but the focus today has shifted. In 1938 Lord Atkin observed in the House of Lords that the employer had to carry out a balancing exercise ‘in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other’. He concluded that if the risk of harm was insignificant in relation to the sacrifice then the employer had discharged the onus on it.

Yet today an assessment of what is ‘reasonably practicable’ takes place against a background of acute risk consciousness. The particular risk of personal injury from lifting patients is thought worthy of EU and UK legislation and of a rigorous approach from the HSE. Judges who hear personal injury claims may also not have the same robust approach to risk that judges of previous decades had. In this climate, it is hardly surprising that some employers have instructed their staff not to lift patients in circumstances that are, frankly, absurd.

In the case that was brought against East Sussex County Council, Mr Justice Munby took over 25,000 words to explain and consider the law on lifting patients. Mr Justice Ouseley is now set to add to this judicial teaching before Ms Wolstenholme can be lifted in and out of bed.

Before 1989 there were no directives, regulations or judgments specifically on the lifting of patients and a robust approach to the issue prevailed. Instead the student or practitioner who needed to know about these things could consult a textbook such as Lifting, Moving and Transferring Patients: A Manual, by Rantz and Courtial (1981). It began with a general rule of patient transfer: ‘before transferring any patient, first use your mind, then your muscle.’ Today, this approach could be unlawful.

Jon Holbrook is a barrister. Email him at jon.holbrook@btinternet.com

(1) R v East Sussex County Council ex p A, B X & Y, [2003] EWHC 167 (Admin)

(2) Hands on approach required, Channel 4, Victoria Macdonald, 18 February 2003

(3) Article 3(2)

(4) Regulation 4(1)(a)

(5) Knott v Newham Healthcare NHS Trust [2002] EWHC 2091 (QB), 16 October 2002

(6) Milton Keynes Primary Care Trust, Trust Board, 13 December 2001