Social Action, Responsibility and Heroism Bill

Written evidence submitted by the Greater Manchester Fire and Rescue Service (SA 06)

Introduction to GMFRS

1. Greater Manchester Fire and Rescue Service (GMFRS) is the second largest fire and rescue service in England. We protect and improve the quality of life of a growing population of around 2.7m residents across 500 square miles and 10 local authorities.

Summary

2. GMFRS applauds the intent and supports the principle of legislation designed to protect emergency service employees and indeed members of the public from litigation following an emergency incident. However, we do not believe that the Bill as it is currently written will provide this level of protection. We consider that the Bill requires clearer definitions of certain key concepts and we expand on this below.

Relevant court cases

3. At the second reading of the Bill (21.07.14) there was some discussion around court cases and their effects on individual members of the fire service. Examples of court cases brought against senior fire officers following incidents can be found online and include:

a) An incident in Manchester where our previous Chief Fire Officer faced corporate manslaughter charges following the tragic death on duty of firefighter Paul Metcalfe in 1999. Five years after the incident and following a six month investigation CFO Barry Dixon was cleared of neglect. [1]

b) An incident in Warwickshire in 2007, where four firefighters tragically died in a warehouse blaze. In 2010, three fire service managers who were in command of the incident were charged with manslaughter by gross negligence and spent two days in police custody. The officers were cleared in 2012. [2]

4. Examples also exist of cases brought against fire services over claims that health and safety rules delayed firefighters from acting during an incident:

a) In 2008 Alison Hume fell down a mineshaft in Ayrshire. A subsequent fatal accident inquiry under Sheriff Desmond Leslie found that Mrs Hume's death "may have been avoided" if a number of "reasonable precautions" had been taken. He found that the emergency services should have acted sooner in assessing the mineshaft and surrounding area and the danger to Mrs Hume of a "prolonged stay in cold and wet conditions". In 2013 the Crown Office decided that there was insufficient evidence that a crime had been committed to raise criminal proceedings. [3]

b) There was widespread national coverage in The Guardian, [4] The Daily Telegraph, [5] and the Daily Mail [6] following the death of Simon Burgess in Hampshire in 2011. On arrival at a lake firefighters concluded that Mr Burgess had drowned and that they would not enter the water as it was more than "half a boot" deep and not a life-critical situation. In 2012 Coroner David Horsley recorded a verdict of accidental death. He told the court, "In this case, the delay in arrival of the specialist team has not been a significant factor in this tragic death," but called on the emergency services to re-examine their protocols in dealing with such situations. [7]

5. The need for legislation designed to protect fire service employees from litigation following an emergency incident, therefore, is self-evident. But the legislation must also be designed to make fire service employees more confident to act - and less risk averse - during an incident without fear of breaching rules and the possible implications of such breaches. We would contend, though, that the Bill as it is currently written will not provide this level of protection. Predominantly, this is because of problems with definition

Lack of definition

6. The Bill as it is currently written does not provide any definitions of certain key concepts and it is important these definitions are agreed.

7. Clause 4 references "an individual in danger", but "danger" is not defined, and the sense of danger will vary hugely from one individual to another. Danger is very much linked to the concepts of risk and hazard (concepts that have proved problematic in the fire service) and, in part at least, lead to the cases illustrated. A firefighter with direct experience and specific training has a deeper understanding of what constitutes a dangerous situation than a member of the public; and sometimes firefighters will identify dangers that members of the public fail to recognize. More broadly, what is a dangerous situation: risk of death or injury to a firefighter; risk of death or injury to a member of the public; risk of damage to the environment? So deciding whether a situation is dangerous or not in the heat of the moment is one thing; it becomes increasingly difficult and diluted by time after an incident has taken place.

8. The Bill also fails to define "heroism". We believe that a helpful aid to this process would be to make reference to the Health and Safety Executive’s (HSE) definition of heroism in the fire and rescue service.

"HSE views the actions of firefighters as truly heroic when it is clear that they have decided to act entirely of their own volition in putting themselves at risk to protect the public or colleagues and there have been no orders or other directions from senior officers to do so and when their actions have not put other firefighters at similar high risk. Firefighting is a complex activity requiring clear definition of roles and responsibilities on the incident ground and is normally undertaken by teams of firefighters. It is important that command and control discipline is maintained to ensure the safety of firefighters and others. This means that there are few circumstances in which an independent decision by a firefighter to put himself at risk will not result in risk to others in the team. There are some circumstances when firefighters working together, in a fast-moving dangerous situation, may decide to put themselves at risk when they have not received specific orders or there is no relevant safe working procedure for them to follow." [8]

9. The HSE’s definition helps provide some clarity around acts of heroism by individual firefighters. However, there is still work to be done around protecting officers in charge regarding the decisions they make during an incident, and it’s no coincidence that the proceedings outlined above are all levelled at officers.

10. Responding to emergencies inherently involves a level of risk and intrinsically brings with it uncertainty and ambiguity, and a need for decision making with incomplete information. Officers in charge must make plans which therefore expose their firefighters to some degree of risk. It would be helpful if new legislation takes this into account, and offers some degree of protection to officers who have taken considered, proportionate risks but - with the benefit of hindsight and more complete analysis than was available to that person at the time - it becomes apparent that an alternative course of action was available. So, some form of "acting in good faith" approach. This would facilitate a greater sense of learning from when crises happen, rather than a sense minimising personal risk and exposure, particularly from those in charge. This is not to provide complete dispensation from foolhardy decisions, rather intruding a greater sense of fairness and proportionality.

11. This is by no means a new perspective and one which is supported as long ago as 1954 in a Court of Appeal decision by Lord Justice Denning who asserted:

"The saving of life or limb justifies taking considerable risk, and I am glad to say there have never been wanting in this country men of courage ready to take those risks, notably in the Fire Service." [9]

12. This perspective is also supported recently by some of the comments made by Alex Botha, Chief Executive of the British Safety Council who in his support for the Bill stated:

"We must remember that…rescuing someone from a burning building, [is] a critical part of the risk equation. People should not be punished if they have acted in good faith for the benefit of society, their community or of one person who is in trouble. Of course we do not support reckless actions and risk education is an important part of this debate, but decisions sometimes have to be made in seconds. It is important that the context of any incident is taken into account by the courts. Great Britain’s health and safety system is not a prescriptive system. It places responsibility on those who create risks and enables them to control the risk in a way that is sensible and proportionate. To sue people who act in line with this approach undermines a system that has led to great improvements to our health and wellbeing at work since the inception of the Health and Safety at Work Act, 40 years ago." [10]

Whilst we agree with this perspective we do not believe that the Bill will support it.

What the Bill should address

13. There is already a large number of documents and protocols pertaining to operating procedures, safe systems of work, HSE recommendations, DCLG directives etc. that attempts to reduce risk by seeking to proceduralise to the ultimate degree.

14. GMFRS concurs with some of the sentencing remarks from Justice MacDuff following the Warwickshire ruling mentioned previously,

"…one of the real difficulties here has been the proliferation of paper which has been generated in recent years both before and after the passing of the Fire and Rescue Services Act 2004…There are many obvious deficiencies in the paper work. Many of the ever increasing number of directives and other papers are couched in language which borders on the impenetrable. We have found internal contradictions and entirely different flowcharts purporting to show the same thing…There is no time for debate at the fire ground."

15. GMFRS believes that any Bill looking at litigation following emergency incidents should look to liberate the dynamic type of decision making necessary to deal with an unfolding emergency, and not, unintentionally, add to the massive amount of operational paperwork that already exists for emergency services. Instead it should offer firefighters clarity and definition and therefore confidence when involved in a dynamic and complex emergency incident.

Conclusion

16. In summary, GMFRS supports legislation designed to protect firefighters and officers-in-charge from litigation following an emergency incident, legislation designed to offer clarity and make fire service employees more confident to act without fear of justifying themselves in court several years later. GMFRS, however, does not believe that the Bill as it is currently written can achieve this and, indeed, potentially runs the risk of adding to the burden rather than reducing it. It is necessary to achieve greater clarity around the concepts of danger, risk and hazard and the ability for the same situations to be seen in different ways by different people.

September 2014