Member Article

The Modern Slavery Act 2015 introduces a new area of compliance for commercial organisations. The Act is amongst the toughest anti-slavery and human trafficking legislation in the world.

Although legal penalties are restricted, interest from patients, consumers, investors, NGOs, pressure groups and brand risk is expected to enforce compliance.

Under Section 54 of the Act, organisations supplying goods or services, with a turnover of £36 million or above, will have to publish an annual statement for each financial year setting out what they are doing to ensure there is no modern slavery or human trafficking in any of their supply chains or within their own organisation. This is known as the 'transparency in supply chains' provision. It came into force on 29 October 2015 and is accompanied by statutory guidance.

Organisations must comply with the Act if they:

• supply goods and/or services; and
• have an annual turnover of £36m or more; and
• carry on a business or part of a business in any part of the United Kingdom.

The Act will affect organisations with a turnover under £36 million to the extent that they supply larger companies who are caught by the provision. Those larger companies will ask the smaller companies to give assurances regarding their supply chains. Smaller companies who are unable to give assurances or who are found to be in breach risk either having their contracts terminated or not being invited to pitch for new ones. Smaller pharmacies or healthcare organisations which supply to larger providers will need to ensure they can answer the questions posed.

It is important not to panic. Transitional provisions provide that organisations with a financial year-end from 29 October 2015 up to and including 30 March 2016 will not be required to make a slavery and human trafficking statement for the financial year 2015/16.

Organisations with a financial year-end of 31 March 2016 will be required to publish a slavery and human trafficking statement for the financial year 2015/16 within 6 months of their financial year-end.

The government has not prescribed the length of or content to be included within the statement. What is required is for an organisation to set out the steps that it has taken during the financial year to ensure slavery and human trafficking is not taking place in any part of its own business or in any of its supply chains. However, an organisation can choose to make a statement to say that it has taken no such steps.

Information which could be contained in the statement includes clear and succinct details of:

• the organisation's structure, its business and supply chains
• policies relating to slavery and human trafficking (including any links)
• due diligence processes relating to slavery and human trafficking in its business and supply chains
• the parts of its business and supply chains where there is a risk of slavery and human trafficking taking place and the steps taken to assess and manage that risk
• the effectiveness in ensuring that slavery in human trafficking is not taking place in its business or supply chains, measured against key performance indicators
• training about slavery and human trafficking available to its staff
• plans for the future (both in terms of due diligence and collaboration with others).

The statement must be approved at the highest level of the organisation (i.e. by a director or a partner as appropriate); senior level engagement is required; and a link to the statement must be published in a prominent place on the home page of the organisation.

Organisations should consider the following areas when conducting risk assessments:

• business partnership risk
• country risk
• sector risk
• transaction risk.

Continuous assessment, audit and risk review is essential.

If an instance of modern slavery is identified, organisations should always consider what approach will result in the safest outcome for the victim(s) whilst remembering the commercial influence the organisation holds over the perpetrator.

Termination of supplier relationships should be a last resort which should only be considered after all efforts to work collaboratively to remedy the situation have been exhausted.

Healthcare professionals

Healthcare professionals can be at the front line when identifying cases of modern slavery and human trafficking. People who have been trafficked or are victims of modern slavery may be under the authorities' radar and may not have contact with other services.

It is understood that patients who have been trafficked are frequently diagnosed with a range of mental health issues including post-traumatic stress disorder arising from psychological abuse and physical violence.

It is important that health care professionals know what to do if they think a patient might be at risk and how to help them, including referring them to the appropriate authorities.

On 1 November 2015 Section 52 of the Act came into force. It requires public authorities (such as county, borough and district councils) to notify the Home Office when they encounter a potential victim of modern slavery. Medical professionals and those in the healthcare sector are not expressly bound by this duty, however they can choose to make a notification if they consider a patient to be at risk.

Issues of patient confidentiality arise when making a notification to the authorities, however well-meaning that notification is. Patient consent is key if full details are to be given. However, even if an adult victim does not consent to the notification, the information can still be shared if it is limited to ensure that the victim cannot be identified.

The NHS has provided guidance on how to identify and help victims of human trafficking as well as how to refer victims for support going forward. It is recommended that "NHS staff who suspect that a patient may have been trafficked can contact the 24-hour confidential helpline, run by the Salvation Army, for professional advice and support on 0300 303 8151. Staff should follow child protection guidelines when child trafficking is suspected, and speak to their designated lead for child protection: out of hours staff should contact their local Children's Social Services or Police, specifically highlighting their concerns about child trafficking".

What next?

If your business is involved in the healthcare sector you should assess whether the provisions apply to you and decide how you wish to comply with the provisions. If they do not directly apply, what approach will your business take if you are asked to give assurances by a larger organisation which you supply?

If you are a healthcare professional, be alive to modern slavery and human trafficking issues and decide what approach you will take if a patient needs your help.

For further information or guidance on any general healthcare matters please contact a member of the Shoosmiths' healthcare team at [email protected].