Under the Health and Safety at Work Act 1974, organisations have a duty to manage risks and to protect the health, safety and welfare of their workforce and other people who might be affected by their work activities. With the number of AI tools ever increasing, employers will naturally look to incorporate AI solutions as part of that risk management process. The healthcare sector is heavily regulated, accountable to bodies such as the Health and safety Executive (“HSE”) and the Care Quality Commission (“CQC”). Compliance is key and AI solutions that can assist with ensuring such compliance, will no doubt be a welcomed development by healthcare providers.
Whilst AI will prove increasingly capable at providing assistance to employers in their fulfilment of their health and safety duties, organisations should be careful not to place too much reliance on this and certainly not to seek to replace human input.
Two duties, which are the ‘bread and butter’ of health and safety law are:
So how can AI go to the fulfilment of these two duties and how will this benefit the healthcare sector?
AI systems can process and analyse a vast amount of complex data, identifying patterns and correlations which might not be immediately apparent to human analysts. Such a tool could be of great assistance to healthcare providers, such as Spire Healthcare, when determining appropriate actions to take in order to minimise potential risks posed to both employees and service users. For example, predictive analytics in AI can analyse past incidents and identify underlying factors that contributed to them, forecasting potential similar scenarios and providing valuable contribution to the identification of risks.
In a 2022 analysis, the HSE found that approximately 6.6% of workers in the Human Health and Social Work industry suffered from work-related ill health, a rate that was 4% higher than that for workers across all other industries. Statistics such as these make the regulator more confident in cracking down on poor compliance, a crucial aspect of which is transparency. AI-driven risk assessments can provide transparent decision-making processes, by outlining the algorithms and criteria used to evaluate risks and remove unconscious bias. AI can also support in the record keeping and retention of key information, which may be crucial in the analysis of incidents and may assist in the event of legal proceedings.
Whilst these benefits exist, AI systems often lack the nuanced contextual understanding of humans, which is particularly limiting for the management of safety risks. Human error is often the root of health and safety accidents - specific human understanding of unique and minor variables such as change in weather, fatigue or equipment, are all conditions which a human assessor will be able to accurately consider when writing a risk assessment. Where a human can apply the circumstances to that particular setting and the unique characteristics of a person, AI is limited to predictions based on past situations and the ‘generic’ human.
These limitations are particularly evident in ‘dynamic’ risk assessments, whereby workers respond in ‘real-time’ to new circumstances, assessing and responding to risks on the spot. Competent humans can quickly adapt their assessments to accommodate a vast array of environmental conditions and circumstantial changes. However, AI might require retraining or manual intervention, potentially delaying the implementation of necessary safety measures. Such a delay would not be appropriate, for example, where immediate action is required in response to an incident in a healthcare setting, in order to protect the health, safety and welfare of a staff member or patient.
Central to any effective health and safety management, including carrying out risk assessments, is the duty under Regulation 7 to appoint a competent person. In short, the realisation of this duty means that AI simply cannot be used as a substitute of human oversight. The Health and Safety Executive (HSE) confirms:
“You must get help from a competent person to enable you to meet the requirements of health and safety law. A competent person is someone who has sufficient training and experience or knowledge and other qualities that allow them to assist you properly. The level of competence required will depend on the complexity of the situation and the particular help you need”.
Whilst the appointed competent person may use technology to assist them in their role and may assist them in demonstrating that they have the ‘necessary knowledge’, it cannot be used as a replacement for the requirement to have necessary ‘skills and experience’. It certainly cannot be a replacement for the person themselves.
It is also noted that in HSE Guidance, ‘competence’ is defined as combining “practical and thinking skills, knowledge and experience”. When describing what competency looks like when done badly or not at all, the first example is “lack of awareness of key hazards/risks”.
Whilst admittedly it is unlikely that this was written in contemplation of the ‘competent person’ being taken over by AI, the use of the words ‘thinking’ and ‘awareness’ are two qualities unique to humans to which the HSE have afforded high value in the management of health and safety.
It is not to say that AI does not have its place in the world of health and safety regulation. As laid out above, its ability to assist with improved risk identification, transparent decision making processes and record retention of key information makes it an extremely useful tool to for organisations in their management of health and safety risks. This is particularly so for healthcare providers, who are closely scrutinised by regulators when it comes to legal compliance.
It is evident that the assistance of AI in managing workplace safety is on the rise and the benefits of it should not be under-estimated. Nevertheless, health and safety is a human centric issue which requires a human-centred response to ensure that obligations required by health and safety law are met. As such, health care providers such as Spire Healthcare must carefully consider how the implementation of AI tools may assist, rather than replace, those with risk management responsibilities within the organisation.
For more information on regulations surrounding workplace health and safety, please contact the business risk and regulation team.
