Minimum standards for complying with HSE's operational procedures for investigations

SPC/ADMIN/84

OG status:

Fully open

Author unit / section:

HID/ HIDHQ/ Business Assurance

Target audience:

HID Inspectors & investigation support teams

Version: 1

Purpose

This document sets out minimum standards for complying with HSE's operational procedures for investigations. It is an aide memoire of key requirements to help operational staff, managers and support teams at all levels comply with the procedures. It is not an exhaustive list of requirements and HID staff should still refer to the operational procedures as necessary.

The document includes a checklist of the key requirements together with more detailed background information.

HID will use these standards to benchmark performance, identify if improvements are required and provide assurance to operational line managers and HMB. 

Background

Regulatory decision making audits completed in HID 2010 and 2011 identified that HID needed to improve compliance with HSE operational procedures for investigations. This document sets out minimum standards for ensuring HID are compliant.

Annex 1 - Checklist of key requirements

Incident Selection

1. Does the incident meet HSE's Incident Selection Criteria and Divisional guidance where provided?

2. Is the mandatory/non-mandatory status on the COIN incidents page complete?

3. If mandatory and not being investigated, is the reason entered on the drop down box on the COIN Case incidents page and the decision explained on the notes field?

4. Have timescales for selecting the incident for investigation been met?

Type of notification

• Fatal 
  One hour
• Major injury, occupational disease, dangerous occurrence or other serious incident           
  3 working days
• All other incidents   
  5 working days

Investigation preparation

5. Have objectives and initial timescales for the investigation been agreed? Have proportionate preparations been made to carry out the investigation? Are these recorded on COIN?

6. Has the investigation started as early as possible and within 3 weeks from the decision to investigate? If not, are the reasons justified and recorded?

7. Has the necessary immediate enforcement action been taken in accordance with the EMM?

8. Is the investigation being actively managed with the initial review at 3 weeks and subsequently at least every 2 months? Are these reviews, including consideration of lines of enquiry and objectives, recorded on 'investigation tracking' on COIN?

9. Are investigation visits recorded on COIN?

10. Was the investigation completed within 12 months of the incident or of HSE taking primacy?

11. Has the EMM1 been completed properly and attached to the COIN case?

12. Has the correct investigation report template been used and been attached to, or cross-referenced, on COIN?

13. Does the report identify immediate and underlying causes? Are wider lessons learned for industry?

Completing the investigation

14. Have non-compliance issues requiring action by the dutyholder been confirmed by letter or notice? If actions are not taken in accordance with the EMM, have they been justified?

15. Have issues been recorded and closed out in a timely way on COIN?

Annex 2 - Further details of key requirements

Incident Selection

1. Does the incident meet HSE's Incident Selection Criteria and Divisional guidance where provided?

Operational Procedure gives generic criteria for deciding whether to investigate.

This may be supported by Divisional guidance, including:

SI - SPC/Admin/81 for major hazard precursor events;

There is value in investigating a small proportion of non-mandatory incidents (for instance for training purposes, or to gain a better overview of a duty holder's performance) but this should not detract resources from investigating mandatory incidents. In either case, where an investigation is carried out, it should meet the requirements in operational procedures.

2. Is the mandatory/non-mandatory status on the COIN incidents page complete?

The mandatory status of the investigation should be recorded on the COIN Case incidents details, incidents page.

In OSD: The tracking sheet to go on COIN/TRIM to record the decision based on OSD criteria and the Key Decision Log should be included in the COIN case.

3. If mandatory and not being investigated, is the reason why detailed in the incidents page on the COIN case?

Where the selection criteria are met, the expectation is that the incident will be investigated. However operational procedures allow the following factors can be taken into consideration:

• Is the investigation impractical, eg due to the unavailability of key witness(es) or key evidence is no longer available?
• Are / were there no reasonably practicable precautions available to prevent the incident or to prevent a recurrence of the incident?
• Do inadequate resources (including consideration of resources from elsewhere in the Division) or other developing priorities prevent investigation?
• Have similar circumstances/situations already been investigated making additional investigations unnecessary eg occupational diseases already investigated.

If a mandatory incident is not being investigated for reasons above, the reason why should be recorded on the drop down box on incidents page on the relevant Case.

The reasons available for selection of the incidents page on COIN are:

• Inadequate resources
• Investigation is impracticable
• Reasonable practicable precautions already taken.

The reasons behind the decision should be entered on the notes field on the COIN case. This will allow for effective business assurance and analysis across HID.

4. Have timescales for selecting the incident for investigation been met from the time the line manager received the notification?

The inspector's line manager should make the selection decision, forward the incident for next action and ensure it is appropriately recorded:

• One hour of the receipt of the notification of a fatal
• 3 working days of receipt for a major injury, occupational disease, dangerous occurrence or other serious incident
• 5 working days of receipt of all other incidents

If a provisional decision has been made not to investigate a mandatory incident because of inadequate resources or other developing priorities, the decision should be referred to the senior line manager. The senior line manager should review the decision and either approve it or not within 5 working days of receipt from the Inspector Line Manager. In either case, the senior line manager should record the decision on the Case notes field.

Investigation preparation

5. Have objectives and initial timescales for the investigation been agreed? Have proportionate preparations been made to carry out the investigation? Are these recorded on COIN?

Objectives and initial timescales

The Line Manager, together with the investigating inspector, should:

• set the objectives for the investigation with the aim of identifying any potential or actual material breaches in the early stage
• agree the timescale in which the investigation will begin
• decide when to review the investigation, forecasting with the inspector the progress to be made by that date.

Proportionate preparations

The Line Manager, together with the investigating inspector, should plan and prepare the investigation to the extent necessary by:

• gathering and considering the records and intelligence held about the duty holder
• considering how all reasonable lines of enquiry should be weighted towards physical, witness or documentary evidence in order to gauge the balance of the investigation activities
• assembling information on the relevant benchmarks and guidance
• identifying the investigation priorities, especially regarding any essential evidence that may disappear, deteriorate or even be unobtainable
• establishing the arrangements for joint investigation management of a fatal incident investigation with the police and the CPS (in England & Wales) or the COPFS (in Scotland)
• OSD to establish arrangements for a joint investigation with DECC in accordance with the requirements of the HSE/DECC MoU.
• considering whether specialist support is required at the initial stage, and if so, specifying role and purpose
• considering, for potentially complex investigations, whether an analytical investigation method should be used with the support of an AIMS facilitator
• ensuring a key decision log is opened and used (mandatory for all work-related fatalities or declared major incidents)
• identifying any other agencies that are, or should be involved, agreeing investigation roles with them and recording significant developments and outcomes as necessary

Points to consider

Conducting the investigation

6. Has the investigation started as early as possible and within 3 weeks?

The Operational Procedures states that "unless there are exceptional circumstances, the investigation must commence at the earliest opportunity and, in any case, within 3 weeks of the decision to investigate..."

Substantial delays between the date of the incident and start of the investigation may compromise the quality of the investigation.

Points to consider

7. Has the necessary immediate enforcement action been taken?

If there is risk of serious personal injury, the Inspector should take the necessary immediate enforcement action in accordance with the EMM.

8. Is the investigation being actively managed with the initial review at 3 weeks and subsequently every 2 months? Are these reviews, including consideration of lines of enquiry and objectives, recorded on 'investigation tracking' on COIN?

Investigations should be actively managed and sufficiently resourced in order to make timely progress, in proportion to their scale and complexity, and avoid delay.

All investigations should be subject to regular reviews by line managers, with timing of reviews set to the expected rate of progress within the maximum intervals of 3 weeks for the first review, and 2 months for subsequent reviews, as outlined within Step 5.8 in the Investigation Process Flowchart to determine:

• whether the incident is to be investigated any further
• whether an analytical investigation method should be used
• in England and Wales, whether the combined investigation and prosecution report form should be used
• in Scotland, Form LPS1
• whether the investigation has revealed any new or previously unknown risks that require communication within HSE or externally
• whether the investigation should now be concluded

The following performance standards are detailed within the investigation procedure:

• review the investigation whenever significant information comes to light which affects the course of the investigation, otherwise
• it is mandatory to review the Investigation after 3 weeks, and subsequently at 2-month intervals,
• if within 3 weeks of the decision to investigate the investigation has not yet begun then the first review should note this, and consider also if exceptional circumstances apply

In HID, Heads of Unit are expected to undertake a formal review at 10 months.

Line management reviews should be recorded on the Investigation Tracking tab on the COIN Case, in compliance with the COIN Procedures (detailed on pp21-22).

There is not much detail of what information should be put on the Investigation Tracking subpage. However, some good FOD examples are recorded in TRIM. Two main elements in the examples are consideration of lines of enquiry and setting of objectives.

A TRIM folder should be set up for all investigations progressing after the initial 3 week review and, where practicable, investigation documents and other material should be saved in the TRIM folder. This should improve how investigation material is managed.

When the investigation reaches the point where an enforcement decision should be made, the enforcement management model should be applied in line with Step 5.6 of the Investigation Process Flowchart.

In the case of work related deaths, a decision not to pursue prosecution should be referred to the Band 1 (Step 1.4).

Actions where HSL are involved in the investigation

At the 3-week Review, the content of the HSL contract GP30 (detailing the scope of work) should be reviewed. By this point the objectives, deliverables, deadlines/timescales and costs should be well developed and agreed with HSL. For large investigations it might be reasonable for this document to cover just the first phase, but in all cases it should be very clear what the HSL costs are, and what is to be achieved, over the first 3 months of the investigation.

All project documentation relating to HSL reactive support for an investigation (GP30, GP15 - variation to scope of work), and the progress of deliverables against agreed deadlines, should be reviewed on a two monthly basis. A record should be made of any delays, and the HID Science Business Partner informed.

HSL investigations which exceed £25,000 in costs will be routinely notified to the relevant Band 1 by the HID Science Team. Further costs will then be notified on a monthly basis. This is to ensure that relevant HID Unit Manager is sighted on significant costs, and to allow a review of cost/benefit to take place.

Under no circumstances should HSL costs or timescales ever exceed what is agreed in the project documentation (GP30, GP15). The HID Science Team will monitor this on a monthly basis.

Points to consider

9. Are investigation visits recorded on COIN?

Investigation site visits should be recorded on COIN in compliance with the COIN Procedures Site visits should have a COIN Case Note.

The Case "Note Summary" detailing all the significant visits, correspondence and contacts with other regulators etc associated with the investigation, including:

• Date of visit (this is essential as it is not recorded elsewhere)
• Place of visit (if not the site)
• Person(s) seen and their role
• Purpose of visit eg taking statements from Mr X, Ms Y and Mrs Z
• Any other matters which need to be recorded and are not suitable for the "Investigation details" above.

The Case "Note Details" should further include a summary of the investigation to provide brief information on:

• names (and agencies) of other investigators;
• role of duty holder(s) - self-employed/employer/ principal contractor etc;
• other interested agencies - contact name, agency name;
• Incident consequences;
• immediate and underlying causes;
• enforcement action(s) taken - what/who against;
• duty holder action taken to secure compliance and prevent recurrence;
• conclusions and where relevant, reasons for concluding the investigation;
• any other details - photos, diagrams, further papers;
• any lessons to be learned;
• where relevant, state that a further investigation report has been completed
• and attached to the note

Points to consider

10. Was the investigation completed within 12 months of the incident or of HSE taking primacy?

Investigations into fatal incidents should be completed within 12 months of HSE taking primacy. Investigations into all other incidents should be completed within 12 months of the incident.

Points to consider

11. Has the EMM1 been completed properly and attached to COIN?

The Operational Procedures requires an Enforcement Assessment Record (EMM1) form should be completed for all fatal accidents, major incidents, prosecutions, investigations and other specified cases.

HID now expects an EMM1 for all investigations and attached to the relevant COIN Case.

Note: there may be multiple EMM1s required for each investigation, dependant on the circumstances of the investigation.

For investigations where OC70/1 (Protective marking of investigation material) applies, the EMM1 should be marked as "Restricted", saved in TRIM, and a relevant note to that effect recorded on the relevant COIN Case Note.

The basis for HSE's Enforcement Management Model is an analysis of the risk gap created by the breach. Risk gap analysis is explained in Step 3 of the EMM Flowchart. The accuracy of the risk gap analysis is key to the outcome of the EMM considerations.

Step 6 of the EMM Flowchart states that if the proposed enforcement action does not fully address one or more of the strategic factors¹, the Line Manager, together with the investigating inspector should complete the management review section of the EMM1. This allows them to review the conclusions reached at each stage and, if appropriate, agree an alternative enforcement approach.

Decisions made in the management review should be recorded on the EMM1 in sufficient detail to make it clear how the final enforcement decision was reached.

Points to consider

12. Has the correct investigation report template been used and been attached to, or cross-referenced, on COIN?

Stage 2 of the Investigation Process requires the HSE Combined Investigation and Prosecution Report template is completed for all investigations where approval for prosecution is sought.

In Scotland, form LPS1 should be used.

However, there are circumstances in which the investigating inspector, and their line manager, might wish to consider reporting the investigation in the investigation section of the Combined Investigation and Prosecution Form, regardless of whether or not the investigation might result in prosecution. These circumstances might include:

• fatal incidents unlikely to result in prosecution
• investigations which have resulted in enforcement action other than prosecution, where such action is likely to be contested by the duty holder;
• investigations of complex incidents, or incidents of significant public or pressure group interest
• for training purposes

As HID's focus is now limited to investigation of mandatory incidents, it is now appropriate for all HID investigations to be recorded on the HSE Combined Investigation and Prosecution Report template.

For those investigations where OC70/1 (Protective marking of investigation material) apply, the Investigation Report should be marked as "Restricted", saved to TRIM, and a relevant note to that effect recorded on the relevant COIN Case Note.

13. Does the report identify underlying causes?

Without proper consideration of management system failures (or underlying causes) the investigation cannot meet its main objectives of determining;

• the adequacy of the duty holder's response;
• whether the duty holder had done all that is reasonably practicable;
• in what areas the duty holder should improve;
• what further actions the duty holder needs to take to prevent a similar incident
• wider lessons for dutyholders and industry.

Correct completion of the HSE Combined Investigation and Prosecution Report (or LPS1 in Scotland) template will assist in meeting the above core objectives.

The Additional Guidance of the Investigation Process offers the following useful definitions of immediate and underlying causes:

• Immediate (or direct) causes are the unsafe acts or conditions that initiated the undesired event(s) under investigation. For example, where a pipe is fractured and releases its contents when struck by a vehicle, the immediate cause of the incident would be the vehicle impact.
• Underlying (or root) causes are the failings that allowed the unsafe acts or conditions that initiated the undesired event(s) to arise. Underlying causes should be explored fully as they are usually arise from organisational or safety management systems failings.

Furthermore COIN Case "Incident Analysis" should be completed for all Investigations in compliance with the COIN Procedures.

Completing the investigation

14. Have non-compliance issues requiring action by the dutyholder been confirmed by letter or notice?

COIN Procedures require that duty holder action needed (to secure compliance and prevent recurrence) is recorded within the COIN Case "Note Details".

HID has a number of arrangements for confirming what action the duty holder is required to take, including:

• SI - Specialised Industries Division (SI) guidance on raising and tracking issues following an inspection or investigation;
• OSD: where a notice has been served, normally a visit to the installation is required to check compliance. Occasionally can be confirmed by onshore office visit. Letters should be written in accordance with SPC/Enforcement/166.

Letters sent to duty holders are in accordance with the principles of the HSE Enforcement Policy Statement and are one of the outputs of a regulatory intervention. They should only contain important health or safety concerns which require further action by the duty holder and for which enforcement action could reasonably be taken.

Step 2.1 of the Prosecutions Flowchart requires prosecution reports are prepared within 25 working days of completing evidence collection and necessary consultations.

From 2012/13, the time for approving cases is 85% within 4 weeks and 100% within 8 weeks of the approving officer receiving the report. This will be the time from the date of the prosecution case is raised on COIN to the approval date.

Points to consider

15. Have issues been recorded and closed out in a timely way on COIN?

Important health or safety concerns are "issues" as defined in the FOD/HID COIN Guidance as:

• where a re-visit is required for any issue not resolved during the visit, unless all of the issues are fully captured in an Improvement Notice; or
• where issues are identified during a visit, which require the duty holder to confirm that remedial action has been taken.

Issues should be recorded in the COIN Issues tab. Any issue closed out should have a sufficient description of how it was resolved. Any issues with a "required date for closure" exceeding 90 days, should be agreed by the line manager and recorded on the COIN Notes field.

Points to consider

Footnotes

1. Strategic factors include public interest, vulnerable groups, effect on others, the EPS etc. Back