Comments by Andrew Auty

Andrew Auty
Member - 17 posts

Thank you both for these responses. It is clear that your understandings of stress are deeply rooted.

A person's understanding of stress contributes to self protection and at the same acts as a risk factor and as a maintaining factor. So, I dread to challenge the potential protective effect even if the goal was to allow the interrruption of an unhelpful risk or maintaining factor.

As for the UC research into civil servants, well there have been 16 or so high quality prospective studies on stress and heart disease. 7 find a weak link with objective heart disease but 6 of these were based on just this one cohort! The rest find no link (actually one sub category link was found).

The problem with the Whitehall studies is that the only solid conclusion was that low work status (seniority of rank) was a risk factor. Work status might correlate nicely with perceptions of the many different stressors that were proposed as hypotheses. But it might also correlate with dozens of other factors to do with wealth race gender...

Other researchers have established that the measures of stress used in the Whitehall study are not mutually exclusive i.e. they all tend to measure the same thing, but no-one has yet found out what that thing (unifying concept) is. There is good evidence that it is to do with relationships. The new research is at least consistent with that.

There are no succesful intervention studies based on any of the myriad ways of measuring stress. Promoting people to higher work status would be the obvious answer, but this might complicate the way work is organised!

I therefore regard the research literature as indicating on balance no causal link. I look forward to reading the new study.

Promoting the concept that stress causes heart disease might just be a self-fulfilling prophesy. Promting the concept that is doesn't cause heart disease might also be a risky choice. Given the state of the research evidence, any choice here is essentially a political one. Thank goodness the choice isn't mine to make.

I am glad of the certainties you espouse in your responses, but am unable to share them.

Andrew Auty
Member - 17 posts

Before deciding what meaning to attach to the research paper, wouldn't it be a good idea to read it? Was the association corrected for trait? How strong was the association? Confidence limits? Other confounders assessed? Statistical power...

I see from your comment that you associate the report with injustice, poor communication skills, bullying, failure to follow procedure. Which of these was assessed in the research paper?

The next problem is deciding whether the apparent causal factors have a rational mechanism linking them to the harm observed. If they do, then there is a chance that eliminating the causal factors could improve outcomes. If they don't then the correct response remains uncertain. Thus far, stress research has been good at identifying associations, but interventions research based on countering these stressors have proved to be uninformative.

Looking forward to actually reading the paper.

Andrew Auty
Member - 17 posts

The judgement makes very interesting reading. You should get it from BAILII.

It procalims a view that mental breakdown is an indivisible disease and, that being so, any one of several contributary factors could be found liable for the entirety of the harm done. For some reason the judges here decided that the factor which carried insurance should shoulder the financial burden but had to admit that the way the award was actually put together was not consistent even with the concepts used in arriving at this point.

Unfortunately this case uses views which are also not consistent with the bulk of scientific knowledge or with the greater proportion of civil law in the UK . This will create considerable uncertainty as to its application.

What is clear from the judgement is that the defendent in this case was consistently regarded as having done less than could be reasonably expected. The judges were not at all convinced by the many and varied arguments put forward by the defence, with possibly one exception. The appeal was regarded by the judges as weak. This gave them the opportunity to extemporise, and in my view, they took it.

Brendan, I invite you draw your own conclusions as to the probability of an increase in claims activity in Ireland. It all depends on the traditions in Irish courts and their views on obiter.

Andrew Auty
Member - 17 posts

The problem is even more complex when working with global added value chains. Different juridictions have different liability insurance and compensation rules. One thing that is often overlooked is to make sure that an equitable proportion of the liability insurance premium is paid in the jurisdiction where the organisation responsible for the loss is based. Jurisdictions often take a dim view of a missed opportunity to collect insurance premium tax.

Andrew Auty
Member - 17 posts

I am glad the conultation is ended. Perhaps now we can have a breather from misleading journalism?

The article above includes: "the condition may not always, in itself, develop into asbestos-related illnesses such as mesothelioma." Pleural plaques do not develop into asbestos-related conditions such as mesothelioma. Even to suggest they do is irresponsible and likely to cause needless distress.

Why then do the authors of workplace law articles on this subject persist in writing in such terms?

Andrew Auty
Member - 17 posts

Of course the issues of human rights are important ones and need to be clearly resolved.

An issue which seldom gets an airing is the problem of false negatives.

If you have a right to access systems, and possibly need to access them for the safety of others, then a false negative could have a detrimental effect. Where the consequences of false negatives are serious, e.g. medical equipment, banking, train drivers etc, systems need to have the ability to accept an override command or some other mechanism for forcing acceptance. In which case, what is the real of value biometrics? Risk assessment ought to be employed to assess whether the hoped-for efficiency gains offset the potential liabilities including those arising from false negatives, loss of control over override commands and of course human rights based challenges.

Liability insurance might be the simplest answer.

Andrew Auty
Member - 17 posts

Although flattered to see I'm being selectively quoted in this article I am also bemused by the opening editorial which says (selectively):

“…pleural plaques – the formation of scar tissue on the lung which can lead to conditions such as mesothelioma”

This statement is incorrect. There is no known pathogenetic link between plaques and mesothelioma and it seems very unlikely that any court expert in the UK tradition, would say there was.

Inaccurate statements ought to be avoided even during a political campaign, who knows what harm they might do?

Andrew Auty
Member - 17 posts

I look forward to reading the BMJ paper.

After 16 years of DSE regs, we are still waiting for unequivocal evidence of compliance leading to reduced incidence of idiopathic backpain. Perhaps a reference in this article to the manual handling regulations would have been more accurate?But the same is true, idiopathic backpain incidence is not significantly affected by compliance with the manual handling regs either. Well, if it is, the researchers have somehow missed it.

There is good evidence that people cope better with backpain if the work station is more comfortable. Coping leads to reduced levels of reporting and, earlier return to work and, increased retention at work. Improved coping could be mistaken for a sign that injury has been prevented. But to encourage the workforce to believe this interpretation, would be difficult to justify and may even be harmful.

EC funded researchers have recently concluded that the benefits of compliance are not yet domonstarted but, as if this was a thing to cheer, there was no evidence they did any direct harm. But what about indirect harm?

EC has occassionally promised to withdraw ineffective regulation, but let's not hold our breath. An alternative would be to clarify exactly what the DSE Regs and Man Hand Regs are expected to achieve in terms of injury prevention. Idiopathic Backpain should be on the list headed "probably irrelevent" or at best "hypothetical benefit".

Ensuring that backpain is properly managed is a more plausible aim, but currently exceeds the duty required of the employer.. A good employer would make accommodations and encourage coping. A tremendous employer would do this before a backpain episode occured. Coping is improved by comfort and now also, if the BMJ article is correct, by employing the Alexander Technique (AT). A duty to prevent injury is crystalised in the Regs but this ia a general requirement with no specific action required for people in pain.

I would encourage AT practitioners to offer views as to the benefits of AT and whether or not everyone is suited to this approach. It would be particularly interesting to discover whether patients who believe work caused their pain and even injury are easier to rehabilitate, or harder. Do AT practitioners use work outcome as a measure of success/ need to treat?

Andrew Auty
Member - 17 posts

An employment rights lawyer once stated the following after a successful day in court:

“It seems likely to me, based on my sketchy understanding of life the universe and everything, that everything a person does or says is conditioned to varying degrees by what they know and what they believe.

Only rarely are we acutely aware of the central role of beliefs and the limits of our knowledge. These occasions are frequently the result of clashes with the person next to us, our masters and our servants. If we can develop enough detachment on these occasions we have a chance to learn what our beliefs are and then we have a real choice about them.

More often than not we respond, probably unwittingly, so as to reassure ourselves that what we already believe, is in fact, the right choice. Revelations are few. We seem to have a gift for behaving this way.

So then, we need an inviolable source of revealed truth to help us see the way to making the right choices.

In our democratic system we have chosen to follow a course where manifest intolerance is intolerable. Further, the law tells us which manifest intolerances are intolerable.

It is my job to insist that intolerance of the intolerance of manifest intolerance is not tolerated.”

After this speech I felt certain, that we were in good hands. I rarely return to that pub.

Andrew Auty
Member - 17 posts

It seems I’m in a minority but for me this is a deeply troubling turn of events.

What would a person with a symptomless plaque receive by way of compensation if they stood before the judge and said “I’m not in the least worried, anxious or depressed about the plaque or what it might mean”? Not much, quite likely nothing, perhaps even a reprimand, or worse, for wasting court time. The whole point of the Scottish proposal “that asbestos-related pleural plaques amount to a material personal injury capable of founding a claim in damages”, is to permit compensation for worry.

But this is self-evidently unjust. According to the logic, those who have no plaques will get nothing even if they worked every day alongside people who now know they have plaques. Clearly, in the eyes of Scottish politicians, they deserve nothing even though they too are “people who have a significantly higher risk than the general population of developing serious asbestos-related disease”. Is their worry any different from those with plaques? Are their chances of serious disease really any different? What if they had been desperately worried from the day they were first exposed, 30 years before their workmate got an x-ray? Nothing.

The crux of the problem:
Whether or not plaques are a material injury is a matter of informed opinion. Let the Scottish politicians explain the criteria against which their “plaques amount to a material injury” opinion was formed. If it is a true opinion then the criteria will be universally valid. If not, we must include the law among the victims.

There must be another way of enabling compensation where Scottish politicians wish it.

Andrew Auty
Member - 17 posts

Carole

Just on one aspect...personal injury.

It is not clear what "not in the employees best interest" actually means in your scenario. If we assume it means that work would lead to a deterioration in health (i.e. and injury) then, if the advisor is qualified to say this, the injury should be regarded as probably foreseeable and liability for the loss would be with the employer. A decision to continue employment would be best taken after consultation with your EL insurer. They would probably advise against continuation or, would offer to sell you a rehabilitation service.

The OHA advisor should be asked to specify exactly what kind of work it is that is pathogenic, and if possible, the degree to which this may be undertaken without risk of injury. It is usually possible to identify such information without actually divulging the nature of the medical condition or breaching medical ethics.

It would help, if the OHA advisor could also say for how long the risk associated with work would be significant.

A more difficult question would be to ask the OHA advisor what harm would be done if work ceased. Who has a duty to who? With all the initiatives on getting people off sickness benefits and back to work, this question is likely to come up quite often.

Andrew Auty
Member - 17 posts

Delighted to see reported, the important difference between 'feels worse' and 'actually worse'. The distinction is a central tennet of civil and statute law, but is usually completely ignored by commentators. The better advised advocates quickly spot the difference and guide the "victim" away from a tendency to medicalise their problems. It may not be in their best interests.

Our system of rights tends to require a degree of medicalisation (diagnosis, prognosis and capability assessment for example). Is a rights based approach the most reasonable one to kick off with?

Andrew Auty
Member - 17 posts

Nigel, correct, plaques are not a precursor to disease. The evidence so far is that plaques make no contribution at all to the development of any disease. They are both symptomless and benign. Not that I think anyone should rejoice in the news that they have one ...

A person with a plaque has just the same risk of disease as the person who worked their entire life along side them but just happens not to have a plaque to show for it.

Andrew Auty
Member - 17 posts

2 points come to mind:

1) If accepted as a general principle, compensation for a biological effect, in the absence of measurable harm, would be a new adventure for the civil law.

Potentially in line for compensation would be: raised levels of cortisol, high heart rates, temporary threshold shift, fatigue, aches and pains, anxiety, wheezing and so on. An adventure of this sort could be quite lucrative for some. Awards would probably be low, but processing costs would have a certain familiarity.

In terms of social policy, the duty holder would be encouraged to aim for a zero effect of the working environment. But perhaps this is already the standard of care that is expected?

2) Plaques are not a reliable indicator of exposure history. Many of those who worked alongside those who now have plaques, will not have plaques. The difference in reaction to exposure is unforeseeable just as is the degree of anxiety to be associated with awareness of the x-ray evidence. Why should someone with plaques be treated more favourably than someone without when to most observers the important effect on each is the same? Why should the employer be liable for one and not the other? Is it self-evident that someone without plaques has not been the victim of negligence?

One obvious answer is that a pro compensation Parliament could decide that pleural plaques are an injury. This would avoid the risk of creating a new general principle for the civil law or, self-evident injustice to the plaque less and their (former???) employers.

Once a genuine cause of action is established, compensation for anxiety and its medical effects can be contemplated.

The other obvious answer is that the House of Lords got it right.

If there are no other obvious answers then the question for Parliament is how to balance the long term good health of the civil law on one hand with the temptation to provide money to a vocal lobby, on the other.

Neutral views on this, seem unlikely.

Andrew Auty
Member - 17 posts

Thinking out loud.

A common observation, which may be just anecdotal, is that following a SMS survey, employees are acutely aware of the deficiencies in their work environment, but managers remember the things they have done well at.

How does this help?

The SMS website does explore, at some length, operational and policy work that could enable clear outcomes from an SMS based programme. Is the creation of a solid, auditable project plan evidence enough that the effect of an SMS based approach will be beneficial? Somewhow, organisations, like people, are more complex than that.

CEO and members of the Board might reasonably ask "is the organisation really ready for an SMS based programme?".

How would we know?

It would be reassuring to know the "stage of change" indicators of a potentially good or bad reaction to a SMS survey and the ensuing negotiations.

What is your experience at Board level?

Andrew Auty
Member - 17 posts

The structural similarity between two forms of dust is not a rational basis on which to assess the potential for liability exposure and neither is the reported "same toxicological behaviour". Reporting such short cuts as if meaningful is demeaning to the methodical, logical, evidence based approach adopted by liability risk managers. Pathogenetic mechanism is not established by such flimsy allusions to similarity.

Focusing attention on mesothelioma as the only outcome of interest is also potentially very misleading...if convenient to those who seek research funding or a good story.

A report of the above style could be classified as entertainment...but without a rational framework into which to place this form of reporting it could waste a great deal of time, and trust in science is demeaned.