COMPLIANCE


organisation must be able to clearly demonstrate the circumstances/ reasons for the derogation, and, if required, provide evidence of what measures it took to satisfy the requirement of ‘taking all reasonably practicable steps’ to protect people affected.


n ‘May’ is used for permission, i.e. to indicate a course of action permissible within the limits of the HTM/HBN. Again, these elements could be considered for an area of derogation, but the organisation must be able to clearly demonstrate the circumstances/reasons for the derogation, and, if required, to provide evidence of what measures it took to satisfy the requirement of ‘taking all reasonably practicable steps’ to protect people affected.


The process of derogation


When considering a derogation, the initial question needs to be clearly established as to who has the authority to agree a derogation, and who ultimately holds the responsibility for the decision. Once a derogation has been identified as potentially being required or desired, the issue needs to be very clearly defined by the requester as to the exact nature and extent of the potential derogation. This should include full details of the clause or area of derogation, the reason(s) for the inability to conform to the relevant standard, the predictable consequences of the derogation, and what, if any, mitigation is being proposed to minimise or remove the residual risk of non- conformance.


Following the request, the project team should log it, and undertake a review to assess the request, with input from the appropriate working safety group and Authorised Person(s) for the discipline(s) involved. If considered necessary, the opinion of / comment from the Authorising Engineer for the specific discipline should also be sought, to ensure that all aspects have been suitably identified and considered. For the avoidance of doubt, the review must be comprehensive, and should include representation for all stakeholders, including clinicians, IPC, Operational Estates & Facilities, and the Project team. It must not be undertaken in isolation by the Project Team.


Essential considerations


The review process must consider a wide range of potential implications and consequences, including, but not limited to: n Patient, staff, or visitor safety. n Patient, staff, or visitor comfort. n Maintainability. n Changes in guidance / best practice since publication of an HTM or HBN.


44 Health Estate Journal September 2021


n Advances in technology since publication of an HTM or HBN.


n Clinical activity and clinical process/development or ‘creep’.


n Timescales (both in terms of project programme, and the lifespan of the development).


n Practical limitations (e.g. space and existing building restrictions).


n Lifespan and whole-life costings. n Energy consumption and running costs. n Cost (reduced capital costs must not be put ahead of whole-life or revenue costs).


A full understanding


Once all of these elements have been considered, and the scope of the impact of the potential derogation agreed, a risk- based assessment should be completed to enable the ultimate decision to be made by the Designated Person for the respective system/service, with a full understanding of the consequences of the approval or rejection decision.


Records


A full and detailed schedule must be developed and retained for all proposed derogations or clarifications considered during a project or scheme. This schedule should be comprehensive, and should include, as a minimum, the information (per derogation) shown in Table 1. This schedule would form the basis of a live document register, which should be accessible to all stakeholders for review purposes and information. Where considered necessary, the schedule or register of derogations may also lead to inclusion onto the organisation’s risk register, to ensure that approved derogations do not get overlooked or forgotten.


Ongoing management and review While the majority of derogations tend to be considered in connection with capital investment projects, there are also circumstances when operational derogations are required. These can relate to a relaxation of testing or inspection, or resource shortages or other operational considerations, such as access or external circumstances (such as a global pandemic). Under these circumstances operational decisions are taken, but it is rare to find these incidents recorded as derogations – whether temporary or permanent.


All derogations need to be kept under constant and ongoing review to ensure that operational changes, clinical activity, or condition surveys and investment planning, are undertaken with the full knowledge that areas of the estate may not be fully compliant. An example might include an area converted to manage emergency admissions due to the pandemic becoming a more long-standing


Andrew Poplett


Andrew Poplett IEng, MIHEEM, ACIBSE, AffIFE, AE (W&V), has over 30 years’ experience of healthcare estates management, with specific and specialist knowledge of water and critical ventilation systems. On leaving the NHS in 2010, he established an independent healthcare estates consultancy, Andrew Poplett Enterprises Ltd, which provides AE services for both water and specialist ventilation systems, along with general healthcare estates-related advice and support.


Andrew Poplett has a national client base, and currently provides advice, support, awareness training, and independent auditing services, to over 30 NHS Trusts and private healthcare providers in his role as an Authorised Engineer.


or permanent facility even after immediate pressures have passed. A non- compliant heat recovery unit (which doesn’t conform the HTM 03-01 standards for AHUs) intended as a short-term fix (say for an 18-month period) becomes a semi-permanent ventilation solution to the area. Equally, the use of temporary, ‘tent-style’ isolation facilities become a permanent solution, when a more substantial permanent provision could be developed and installed to provide a safer, and more robust, solution. In emergency situations people can make sub-optimal decisions, and these issues should be kept under review to ensure that they remain appropriate, or, with the benefit of hindsight, that lessons are learned to avoid repetition.


One option for this review process could be to incorporate the review into the standing agenda of the relevant working safety group. This would provide a forum for the majority, if not all, of the agreed derogations, which would be held on a central register.


hej


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