An NHS foundation trust was fined £66,000 and ordered to pay £43,000 costs last month for breaching Section 3(1) Health and Safety at Work etc Act 1974, after a vulnerable patient forcibly removed the window restrictor in place and fell to his death from a first floor window.
The DH also issued an alert on 23 January 2013 regarding the use of window restrictors on healthcare premises. The alert follows a separate case where a patient died after a fall from a second floor window, which he had forcibly opened whilst in an acutely confused and agitated state.
The alert (prompted by a Coroner’s Rule 43 report to the Chief Medical Officer) requires that healthcare organisations:
- Review guidance on the installation, use and maintenance of window restrictors, contained in HTM55
- Inspect all installed restrictors
- Consider replacing single restrictors with more substantial or robust devices or adding a second restrictor to better resist determined efforts to open the window beyond 100mm
- Assess the need for window restrictors in those patient locations where none currently exist
Be careful when reviewing the DH’s Health Technical Memorandum 55 (HTM55), which provides at 2.11 that "a restricted opening [of a window] of not more than 100mm is recommended for use within reach of patients, particularly in areas for the elderly, those with learning difficulties or mental illness, and is essential where windows are accessible to children".
Firstly, there is ongoing debate around the term "within reach". This is not defined by HTM 55 but the related Never Event (relating to unrestricted windows) defines within reach as "windows (including the window sill) that are within reach of someone standing at floor level and that can be exited/fallen from without needing to move furniture or use tools to assist in climbing out of the window." However, the Health & Safety Executive (HSE) appear to take the view that it means any window in any room that any patient can access.
HTM55 is also contradictory in other respects. Whilst at 3.7 it states that "restrictors should be types that can only be disengaged by using a special tool or key", that does not fit well with Appendix B9 that sets out the performance criteria for restrictors which says that they "…shall check the opening of an opening light of whatever type, at an aperture of not more than 100mm. To permit the window to be opened more widely, the catch shall be capable of being unfastened. The catch shall re-engage automatically when the window is closed."
The better approach is to forget HTM 55 and undertake a full and detailed risk assessment (as required under the management of Health and Safety at Work Regulations 1999) of the risks posed to staff and patients by the presence of windows and a determination of the reasonably practicable measures that can be taken to reduce that risk. This should consider the types of patients using the particular location; the other means by which patients who may be confused are managed; and the specific access to and mechanisms of the windows themselves. There are several well publicised cases of confused individuals forcing their way out of windows, either by defeating restrictors or smashing the glass and are not confined to mental health services.
As stated in the alert, the HSE is commissioning research to determine how robust window restrictors need to be to significantly reduce the risk of windows being forcibly opened. The current British standard relates to domestic window restrictors and may not be suitable where adults are determined to escape. The DH is considering revising the guidance contained in HTM55 following the outcome of the research, although let us hope that they instead choose to provide definite guidance that also considers whether changes should be made to glazing and the financial implications of any recommendations.
You may recall that the DH issued a very similar alert back in 2007. The above case and recent others have put the issue back on the agenda. Healthcare organisations must show they have conducted a risk assessment and have actioned the alert.