Could Consultants Face Prosecution

[PhilB]

The offence provisons set out in Article 32(10) of RRFSO could, I believe result in some consulatnts being prosecuted.

i.e. "where the commission by any person of an offence under this Order is due to the act or default of some other person, that other person is guilty of the offence...."

So those who give advice to others or carry out risk assessments on their behalf could be that other person.

[jokar]

Quite correct, that is the legal interpretation and why all consulatants should have Public Liability Insurance.  I do not believe that a FRS would "go after" a consultant, but the Compnat subjected to a Notice may decide that a consultant may not have done the job corrcetly.  By the way this interpretation includes FA and FFe companies.

[PhilB]

I agree Jokar. Hopefully this will deter the less competent assessors from stepping outside their depth.

I too cannot see enforcing authorities going after consultants but the option is there.

I predict that many civil cases will arise. There will be some responsible persons who, having paid good money for a consultant, and followed their advice are then served with an enforcement notice by an enforcing authority.

[kurnal]

Yes I agree with most of this but lets be clear about Public liability and professional indemnity insurance. Insurance can protect my business against civil claims for compensation if I am negligent but do not and can not protect me should I face criminal procedings  having committed a criminal offence, for example if I falsify test results or records, or if through gross negligence I cause someone to die.

[Sarajayne]

I am correct in saying that the resposible person can be found guilty of an offence under the RRFSO for employing the services of a non-competent consultant as well as the consultants themselves?

I also feel that fire authorities do not send enough FRA's back stating that they are not suitable and sufficient, it seems easier particularly if it is  a large organisation not to challenge.  If more challenges were made then this would also deter some of the "cowboys" out there from providing poor FRA's

[novascot]

Phil,

you should have sent this to the thread headed "Suitability of fire risk consultants". It would have answered a couple of my critics. This is exactly the issues I was trying to highlight.

[Paul]

Hmm,

I spoke to my insurers about what level of cover is provided for PI etc, and their interpretation (not mine) was that do not rely too heavily on insurance as it will try to protect you against any claim ,should you offer wrongful advice resulting in a civil or criminal case brought against you,  however, please do not think that it is  water tight.  The insurance is there to cover legal representation and essentially to fight your corner.  Not simply to allow you to accept responsibility and the insurers will settle the claim.

I may of interprated this in the wrong manner, but this is how it read to me??

So all these consultants who are jumping on the wagon, beware!!

Personally I provide justifications, in detail, why I have made a recommendation.  This I find is an essentail part of a FRA, not only to demonstrate to the client your interpretation of the risk, but  in doing so, you are methodically going through the thought process yourself.

P

[Paul]

JUst to add,

I actively encourage communication and critique of my work I produce for clients with the Fire Authority.  On the whole the majority are uninterested, with the exception of a a few Northern brigades, especially north of the border. Where I have to say, if the rest of the UK followed suit, then the ' cowboys' out there would not be in business too long.

I personally think it is only a matter of time before a 3rd party accreditation will force the issue.  Interesting times come one thinks!!

[PhilB]

I am correct in saying that the resposible person can be found guilty of an offence under the RRFSO for employing the services of a non-competent consultant as well as the consultants themselves?

Yes Sarajayne. The responsible person must comply with the law. If he appoints a consultant to act as a competent person for him (article 18) he must take all reasonable precautions and exercise all due dilligence to ensure the consultant is competent.

In plain English:

You choose to appoint your mate Bob, who was a fireman a few years ago, and who tells you he is competent to assess your premises.

Bob looks at your premises. He gives you poor advice, which you act on and that results in the death of a relevant person.

You most probably are guilty of failing to comply with the order. If you have done everything you could reasonably be expected to do to ensure Bob was competent you have a defence of due dilligence.

If the offence has occured because Bob gave you poor advice, both you and/or Bob could face prosecution.

Not wishing to insult anyone, especially any Bobs out there who are nearing retirement.  I must agree that riding on a fire engine does not necessarily qualify you as a fire safety consultant. I think that was the point Novascot was trying to make in a related post.....and I must say I agree.

[kurnal]

Heres another  scenario to supplement PhilBs.

Dissapointed with Bob's report you look in the yellow pages and find the biggest swankiest advert you can for a fire consultant, make sure that they hit all the right buttons, national coverage,  probably have purchased all the right accreditation, iso 9001, IFE badges all over the website, long clients list, glossy brochure.
You ask for a sample report and are sent a high tech impressive template based on PAS 79.

So you appoint "bull**** fire" to carry out your risk assessment.

Next day Bob turns up again with a different clip board and corporate tie and produces the same inadequate report.

I think as a responsible person I have done everything necessary to prove due diligence.  

If dissatisfied I can appoint another consultant to prove the inadequacy of the first two and perhaps make a civil clain against them.

Make a report to the accreditation panel /QA marque under which they operate

But if someone is hurt I as the RP  am still responsible and WILL be the plaintiff in a civil claim despite my best efforts. I may have a reasonable defence of due diligence to counter a criminal claim.

But where do you think, under the RRO or the WP regs, does this leave  Bull**** fire and in particular Bob as their employee?
Whose job would it be to investigate and unravel the tangled web that would be necessary to bring a criminal case to court?
Across the UK do we have sufficiently robust mechanisms between the Fire, Police, CPS, HSE etc to ensure that adequate resources are allocated to investigate and bring all players to account?

[Ken Taylor]

This sort of duty has been around for years in the general health and safety profession as a few H&S people have found to their cost. Professional indemnity insurance is essential for the consultant but can be so costly that they have to be fairly certain of a good steady income to cover the cost and still make a living. Another issue is that, even when they have ceased working as a consultant, the liability for the consequences of negligence will continue and so insurers strongly advise continuing the PI policy for some time as part of an exit strategy.

My understanding is that, whilst the PI cover will be relevant to civil action, they aren't going to shell out for fines imposed by criminal courts or go to prison on your behalf. So beware!

[Big A]

It is true under the WP Regs. Fire alarm companies etc,  as well may be liable.

[jokar]

Big A,  The easy answer is no.  The WFPL includes the MHSWR and Reg 7 of this is about safety assistance.  This firmly leaves the responsibility with the employer.  However, they could, in a court case, bring in a 3rd party, with a defence of due diligence.  RR(FS)O changes this, but it will be for one of the 5 enforcing authorities to decide who to enforce the legislation against.  Mainly, this will be the RP and then we are back to the first point.