Wednesday, 30 January 2013

Asbestos in Schools: A Missed Opportunity

Towards the end of last year Cwmcarn school in Wales was closed after a structural survey identified asbestos in the main block. The report by Santia Asbestos Management Limited concluded that the health risk posed by asbestos was so great that the school should be demolished.

The dangers posed by asbestos have long been known - and they remain a real issue. In the past 10 days Bronglais Hospital in Wales has been in the news, after a critical review of its management of asbestos. It is feared that up to 30 maintenance staff at the Aberystwyth hospital could have been exposed to asbestos.

In light of any number of similar stories and the wealth of available data on how carcinogenic asbestos dust is, you would be forgiven for believing that the government, in its recently commissioned review of the buildings that comprise the education estate, would put 'Asbestos Risks and Management' at the top of its assessment list. This is not the case. In fact, assessment of asbestos is barely even a footnote to the brief. Our schools are being reviewed by sundry experts, at taxpayer expense, and yet clear and identifiable risks to their constituents - children, the most vulnerable sector of society - are not being considered.

A Flawed Survey

Let’s rewind to the genesis to what is now known as the Property Data Survey Programme (PDSP). As part of the government's response to the Review of Education Capital in July 2011, the Department for Education (DfE) agreed that urgent work should be undertaken to collect up-to-date information on the building condition of the education estate. Collection of such data had ceased in 2005. The aim, as stated by the DfE, was to "deliver the most accurate, consistent and comparable data set possible on the condition of the English schools estate."

In September 2011, Partnerships for Schools (now the Education Funding Agency) was commissioned by the DfE to deliver the PDSP. Some 23,000 educational establishments throughout England would be surveyed in order "to ensure future capital maintenance funding is targeted to meet the most urgent condition needs." Work duly began in early 2012. The various surveying companies contracted are expected to complete their analyses in summer, possibly autumn, this year. Their findings will be used to calculate the 2014-15 capital funding allocations. The government then plans to continue with a rolling 20% sample of the education estate each year, so as to enable "a credible full picture of the estate’s condition every five years."

The word "credible" beggars belief. How can the PDSP be regarded as credible if it fails to include an assessment of asbestos in schools?

The PDSP will not assess the danger of asbestos in schools - but it does pay it some lip service. As such, the survey will only seek confirmation that the school has carried out its statutory obligations, i.e. maintaining an up-to-date Asbestos Management Plan and/or Asbestos Register. It will not direct them to the DfE website and relevant guidance. No detailed assessment of the documents will be carried out by the surveyor but if, presumably because they are blindingly obvious rather than carefully investigated, the surveyor identifies any asbestos issues, he or she will bring them to the attention of the school. Each school is then to be left to undertake any corrective measures. This is in keeping with the Control of Asbestos Regulations 2012 (previously 2006) and related legislation, which leaves responsibility for asbestos firmly with local authorities and schools.

In other words, when it comes to asbestos the PDSP passes the buck. It amounts to a huge missed opportunity to determine the scale of the asbestos problem in England's schools and educational establishments. Despite spending millions of pounds on the surveys (£500-£750 for nurseries, £750-£1,200 per 17,000 plus primary schools and £2,000-£3,000 per 3000 secondary schools), no central information will be gathered on the scale of the asbestos problem in our schools.

And Some Flawed Regulations 

Perhaps the government feels that express engagement with asbestos in the PDSP is not merely an extra cost but unwarranted. After all, the Control of Asbestos Regulations 2012 (which updated previous asbestos regulations to take account of EU Directive 2009/148/EC), articulate the so-called "basic principle" that "asbestos is only dangerous when disturbed. If it is safely managed and contained, it doesn't present a health hazard". Two other basic principles hold that asbestos should not be removed unnecessarily ("removing it can be more dangerous than leaving it in place and managing it") and "not all asbestos materials present the same risk. The measures that need to be taken for controlling the risks from materials such as pipe insulation are different from those needed in relation to asbestos cement."

When it comes to schools, the basic principles are seriously flawed. Schools are full of people who, by definition, act in spontaneous and unpredictable ways. It is ludicrous to expect children not to disturb asbestos.

It is tragedy that we are saddled with such inadequate primary legislation but t is all the more disturbing that the PDSP will not collate vitally needed data on asbestos in schools and make it available nationally. Please join me in urging the government to reassess the brief underpinning the PDSP so that our children's lives - and the lives of those who teach them - can be better protected.

Monday, 28 January 2013

Freedom of choice of medical care should not be forfeited

Two weeks ago Charlie Scott was awarded £7.1m in a case that took 14 years to resolve. The story made various nationals, including the Mail, Guardian and The Lawyer. Charlie's story is therefore reasonably well-known, but that doesn't make it any less heart-rending.

Mistakes by midwives when Charlie was born at The Royal Bournemouth Hospital left him with a serious form of cerebral palsy. He cannot walk, talk, sit up or drink without assistance.

Charlie was diagnosed with spastic quadriplegic hemiplegic athetoid cerebral palsy at six months. He will require lifelong care. Quite rightly, his mother commenced legal proceedings against the Royal Bournemouth Hospital Trust - which denied liability for 12 years. Two years ago, Mrs Scott's tenacious lawyers succeeded in proving clinical negligence. The result, now, is the award of £7.1m.

To many people, the award would sound fair, given both the backdrop and the very considerable cost of Charlie's future care. But on 11 January Christine Tomkins, the Chief Executive of the Medical Defence Union, appeared on Radio 4 and suggested that compensation payments of this kind were "unsustainable".

Citing figures from the NHS Litigation Authority - which put its total liability at £16.7 billion in 2011 - Ms Tomkins said: "That's an awful lot of taxpayers' money. And if you look at the rate of increase, in 2010 they paid out £863 million in compensation and in 2011 that figure was £1.2 billion. That is a 39% increase in a single year."

Ms Tomkins criticised rules dating back to the foundation of the health service in 1948, saying that their effect is that the NHS has to pay for the cost of severely damaged patients "on the basis that all the future care will be provided in the private, independent sector". With regrettable predictability, a number of people were quick to post comments in various media to the effect that it is an outrage that victims should be awarded such seemingly high damages.

This issue is complex. Prevention must be better than cure: negligence such as that which so badly disabled Charlie should not happen in the first place. But if it does, claims should be resolved as quickly as possible, and victims must have freedom of choice. They must be given the freedom to try to obtain the best possible care for the rest of their lives. Anything less strikes me as a travesty.

Wednesday, 23 January 2013

Refreshingly Boring - but Ethically Sound

It's rare, in today's world, to be heartened by anything to do with the banks but that is precisely how I feel thanks to last week’s story about Barclays' boss Antony Jenkins.

Jenkins has told the bank's 140,000 staff to buy in to its new code of conduct - or leave.

Leading by Example

Described by The Guardian as "a refreshingly boring banker", Jenkins has had his work cut out since his appointment at the end of August last year. He replaced Bob Diamond when the former CEO was forced out by the Libor fixing scandal. Barclays was fined £290m in June 2012 for its part in the scandal, and its troubles didn't end there. It is fair to say that Jenkins walked into a maelstrom, with a daunting task: to restore public confidence in an institution whose reputation has been absolutely shattered.

How to do this? Doubtless spin-doctors would come up with a variety of clever strategies, and it is just as certain that behind the scenes Jenkins would have been met with a bewildering array of tasks. But, for me, one thing was blatantly obvious: Jenkins needed to bring sound ethical principles back to Barclays. He needed to establish a professional ethos and set the tone and lead by example.

An Ethical Blueprint

Last week's announcement that bonuses and performance will now be assessed against a new 'purpose and values' blueprint goes some way to achieve this. Jenkins has not pulled his punches, and, in telling staff to sign up to five key values - respect, integrity, service, excellence and stewardship - he has positioned himself and Barclays firmly against the malpractice of the past.

Consider his words, as disseminated in a memo last Thursday:

"I have no doubt that the overwhelming majority of you … will enthusiastically support this move. But there might be some who don't feel they can fully buy into an approach which so squarely links performance to the upholding of our values. My message to those people is simple: Barclays is not the place for you. The rules have changed. You won't feel comfortable at Barclays and, to be frank, we won't feel comfortable with you as colleagues."

Jenkins' firm leadership is to be applauded. It is a stance that those in positions of power, whether in politics, the professions or elsewhere, would do well to emulate.

Wednesday, 16 January 2013

Asbestos in schools must be tackled

Once upon a time asbestos was known as the 'magic mineral'. The name arose because of its ability to withstand fire, a property that contributed to the huge use of asbestos by manufacturers and builders in the 19th century. But as the 20th century progressed, so too did the flipside to the so-called magic of asbestos. In fact, by the 1970s the bitter truth about asbestos became widely known: it was a killer.

The inhalation of asbestos fibres can cause serious and fatal illness. Malignant lung cancer, mesothelioma and asbestosis (a type of pneumoconiosis) are commonly seen among those who have been exposed to asbestos dust. Knowledge of these conditions led to the banning of blue and brown asbestos materials in Britain in 1985. Later, in 1999, the import, sale and second-hand reuse of white asbestos was prohibited, and then, in 2006, the European Union banned all use of asbestos as well as the extraction, manufacture and processing of asbestos products.

Can we assume, then, that asbestos is no longer a problem in the UK?

The elephant in the room
Far from it. Asbestos is as much an issue today as it was 100 years ago, when its carcinogenic properties first became known. Each year some 4,000 people die as a result of past exposure to asbestos. Often enough, health problems take 40 years to manifest themselves after first exposure. Little can be done once a diagnosis is made, with most patients dying within 18 months. Victims can find themselves in a doubly invidious position, whether because employers or insurers are untraceable or because of the time it takes for a legal claim to be resolved.

But there is another problem. It is one that potentially affects society's most vulnerable group - children. As Cenric Clement-Evans, who sits on the executive committee of the Association of Personal Injury Lawyers (APIL), says: "Asbestos in schools is the elephant in the room."  

Clement-Evans is a senior solicitor with Welsh law firm NewLaw Solicitors. He has done much to highlight the dangers of asbestos in schools, not least in helping to generate momentum for the signature of this petition. Its aim is laudable: to call for "the National Assembly for Wales to urge the Welsh Government to put measures in place to ensure that parents and guardians of children across Wales can easily access information about the presence and management of asbestos in all school buildings."

Children like to disturb things
The reason? As a recent BBC programme revealed, there are 1,514 schools in Wales containing asbestos (which equates to 85% of Welsh schools). Government policy is that, so long as the asbestos is in good condition and not likely to be disturbed, it is better to manage it for the remaining life of a school rather than remove it. This, in turn, means that most of the asbestos stays put in schools, where it will have to be managed long into the future.

But for Clement-Evans and many others, this isn't good enough. How can we be sure that children - by their nature disruptive, unpredictable and spontaneous – will behave in such a way as not to disturb asbestos in their schools? Even if dire examples such as Cwmcarn School (which, last October, a specialist contractor advised should be closed because of asbestos) are the exception, a risk is taken each day that children attend a school which is known to have asbestos on the premises.

Moreover, last year's report on asbestos in schools by the All-Party Parliamentary Group on Occupational Health and Safety found a number of additional reasons for disquiet. These range from insufficient awareness among staff and school workers of the dangers of slamming doors (doing so releases untoward levels of amosite fibres) and the all too frequent failure to identify asbestos-containing materials in schools. And most significantly, the All-Party report found that government policy is suspect because: "the asbestos is often not in good condition, or it is unsealed and hidden. Tests have shown it can be disturbed by normal school activity and asbestos fibres released over the course of many years without anyone being aware of that. No doubt [the] schools thought that they were managing their asbestos safely, whereas in reality they were not."

Changes must be made
For Clement-Evans, as for the All-Party Group, a number of key solutions should be adopted by the government. The phased removal of asbestos from schools should be implemented, there should be enhanced training and awareness of asbestos risks and there should be openness and transparency, so that parents are not in the dark about levels of asbestos in schools. Schools should also be inspected regularly and a comprehensive database of findings maintained.

Needless to say, what Clement-Evans has commendably highlighted as a problem in Wales applies just as much in the rest of Britain.

More than 228 school teachers have died of mesothelioma since 1980, with 140 dying in the past ten years. None of us want our children to join those unwelcome statistics. We must all do what we can to press for change.

Thursday, 10 January 2013

Deliberate handball or not, cheating is wrong

Regular readers will appreciate that perhaps two or three times a year I stray 'off piste', as it were, with the content of my blog. Forgive me, this is one such occasion - and once again football is responsible. This time, though, it raises a question that dovetails with many other themes aired on this blog.

On the back of the latest controversy involving Luis Suarez, I want to ask: what sort of society do we inhabit when the actions of the Liverpool player are lauded as professional?

I refer, of course, to the striker's handball in last Sunday's FA Cup Third Round tie against Mansfield Town. Suarez took a fine pass from Stewart Downing in his stride and shot on goal, only for his shot to be blocked by a Mansfield defender. However, Suarez never gives up and kept running - so much so that the rebound came his way. Into his right hand's way, that is. Having controlled the ball with his hand, it fell kindly in his path, enabling the player to smash the ball into the bet.

Deliberate or not?

Was it deliberate? It seems that the match officials thought not. They felt that this was a case of accidental handball, of ball to hand rather than hand to ball. Suarez's goal stood, and Liverpool went 2-0 up. They went on to win the tie 2-1 despite valiant efforts by their non-league opponents.

After the match there was plenty of condemnation of Suarez. But leaving aside what only Suarez can know (whether his action was deliberate or not), I found the verdict of a number of seasoned former footballers extraordinary. The majority suggested that Suarez had no obligation to own up to having cheated – if, indeed, that is what he did. Their view was that as a 'professional', Suarez was duty-bound to do the best for his team, so that even if he had cheated his duty was to keep quiet - to get away with it if he could

This brings to mind the 'professional foul' in football, that which is cynically inflicted but which everyone who watches the game seems to accept is a natural part of its fabric.

For football, read the professions

Why should it be? Why should we allow the so-called 'Beautiful Game' to have ugliness at its heart? And what does it mean for society when the country's most popular game either blatantly, at worst, or tacitly, at best, condones cheating?

There is a parallel here with professionalism in other walks of life, notably law and politics. Too often, we appear to turn a blind eye to breaches of ethical codes and rules. It seems that we only object when something is outrageously bad - or when a journalist exposes the truth. As in football, it is almost as if we expect a degree of cheating. This cannot be right. For football as much as the professional sector, the highest standards of fair play and ethical rigour should prevail.

I appreciate that there will be other equally legitimate views on this vexed topic, and would welcome hearing these, as well of course as any more supportive views.

Friday, 4 January 2013

Cash for Access: a Question of Equity?

A new year dawns. The first thing I'd like to do is wish all my readers the very best for 2013. This salutation naturally extends to all Spencers' clients and staff. It goes further, too, to anyone unfortunate enough to be the victim of an accident.

Next, though, some less than upbeat words. Here we are, in the first week of 2013, and already the media is reporting on a story which has ethical laziness written all over it. I am referring, of course, to the latest cash for access scandal.

It seems that a number of all-party parliamentary groups have been sponsored in return for invitations to Westminster events. At the events, high-placed individuals from arms manufacturers, pharmaceutical companies and foreign governments get to meet MPs, peers and policymakers. Can those in receipt of financial donations really say they remain unmoved by the representations, over cocktails, of big business, keen to mould policy to its own advantage? Perhaps. But the fact that we have to ask the question, of those in positions of power and trust, cannot be right.

On Wednesday, The Times disclosed a number of worrying contributions to, for example, The Associate Parliamentary Health Group and The Parliamentary Internet Communications and Technology Forum. I won’t go into the specifics - not least because it seems fair to see what those allegedly in receipt of the funding have to say about it - but I will say that, if true, this matter once again raises grave concerns about ethical standards in British public life.

There is an old principle in the law: 'He who comes to equity must come with clean hands'. The focus of the doctrine is on the notion that a petitioner seeking an equitable remedy - that is, one beyond the letter of the law - must not have acted wrongly in the first place.

If you will allow me to extend or, rather, reverse the metaphor, this saying has resonance with the yet another cash for access story and the ongoing failure to adhere to unimpeachable professional standards in this country.

In other words: will 2013 be the year in which those in positions where they can dispense equity – those in positions of power - finally act with clean hands? I hope so.