On 21 November 2018 an open letter was sent to the UK prime minister calling for an amendment to safety and health legislation to place mental and physical first aid on an equal footing. It was signed by individuals from 50 large businesses and widely publicised.
But can changing laws lead to better mental health at work? Is it as simple as that?
The letter to Theresa May promoted the workplace mental health first aider as an important tool, but it may have misdirected the debate.
Mental health is complicated: the Chartered Institute of Personnel and Development (CIPD) has pointed out that most people with mental illness report that their distress originates at least partly from domestic issues.
Mental Health First Aid (MHFA) is a recovery control. The spirit and primary intent of safety and health legislation in the UK is to be preventive. Existing provisions for mental health and wellbeing under the Health and Safety at Work Act and the requirements of the Management of Health and Safety at Work Regulations compel employers to consider how they may cause harm to employee mental wellness. Their emphasis is on prevention not cure.
Until now the HSE has resisted pressure to recommend the creation of stress at work regulations. The real issue is whether the stretched resources of the HSE and local authorities could be used to inspect and enforce effectively when mental health management systems are found to be deficient in organisations. If they did, then would it be merely transactional rather than transformational?
The spirit and primary intent of safety and health legislation in the UK is to be preventive
One driver for improving safety standards in the UK is civil litigation, or the fear of it. At present, a claimant must prove that their employer had prior knowledge that its actions had caused ill health. This can be shown by the claimant’s absence record denoting a work-related mental health condition or clear evidence that managers had failed to respond despite being alerted.
There may be grounds to argue that an organisation should have had a management system good enough to have identified distress early on and trigger intervention. No test cases have yet been brought.
There have been calls to force organisations to report on mental wellbeing. Some even call for inclusion under the UK’s accident and disease reporting regulations. But this raises problems about the time period in which a case should be reported, defining the date of the incident and apportioning the causes between the organisation and domestic circumstances.
So, what about extending the First Aid at Work (FAW) Regulations to cover MHFA? This is possible but assessments under existing law should already consider MHFA provision as a management system control. That would reflect what is now regarded as good practice. But under the FAW Regulations not all organisations are required to provide physical first aiders: small enterprises may just have appointed persons.
If this provision holds for MHFA too, the regulations would not bring mental health first aiders into the workplaces of most working people as claimed; only those of larger organisations.
Forcing MHFA into legislation would also place it squarely within the responsibilities of the OSH professional. Good mental health and wellness at work should be governed by a whole-system approach under which OSH practitioners, HR and all managers contribute. The real cause of work-related mental ill health is related to the way an organisation operates. Only good management can change that.