When a group of MPs (Members of Parliament) call for ‘precaution’ to address an unproven link between an exposure and a disease, it invites applause as well as healthy scepticism. Such a call prompts especially these two questions: (1) are the authors truly interpreting the science in a ‘precautionary’ way?; and (2) are they calling for specific action(s) that truly embody precaution?
I give the July 2021 report Concussion in Sport, written by the Digital, Culture, Media and Sport (DCMS) Committee of the House of Commons, a ‘one hand clapping’ review. In places, it’s a brilliant repudiation of the ‘manufactured doubt’ that has plagued the issue of brain disease in contact sport, but it offers only self-regulation in response, and more disappointing still, it offers a brand of voluntarism that addresses past problems more than it seeks to prevent future ones.
Kudos for calling brain disease ‘undeniable’
The report begins with this forthright summary of the central issue that has vexed physicians, public health experts and athletes ever since case reports began accumulating showing lesions termed ‘chronic traumatic encephalopathy’ (CTE) in the brains of players who had undergone stark and horrifying cognitive, behavioural, and functional decline years or decades after retirement: “While the current science cannot prove a causal link between dementia and sporting activity and demonstrates overall benefits, it is undeniable that a significant minority of people will face long-term neurological issues as a result of their participation in sport.”
Putting aside (for the moment) the ungrammatical way of making the argument that physical activity also has benefits, the rest of this summary makes a careful but ultimately quite strong statement about risk and knowledge. Yes, ‘proving a causal link’ is a long way off (the same could be said about nearly all diseases we believe but cannot ‘prove’ are caused by specific exposures), but the DCMS’s four ringing words ‘as a result of’ say what needs to be said – it is repetitive head impact (RHI), not bad luck or drug use (?!) or some mysterious factor yet to be identified, that is ‘resulting’ in these disease cases clustered among former athletes. The DCMS deserves credit for cutting through the fog of manufactured doubt and reporting on what is indeed ‘undeniable’.
The report also demolishes the dominant excuse many have offered to treat professional athletes as outside the purview of social policy – that they are fully informed entertainers, fully compensated for the risks they choose to bear. The report makes clear that: “The protections afforded by the state to workers apply as much to footballers and jockeys as they do to miners and construction workers. The Health and Safety at Work Act 1974 was a landmark piece of legislation to protect the health of workers and, along with subsequent Regulations, places a duty of care on employers.”
And it goes further, to leave no doubt who is supposed to provide and verify the protections that athletes-as-workers deserve: “We are astounded that sport should be left by the Health and Safety Executive [HSE] to mark its own homework.”
These are welcome and forthright messages to HSE, and a wake-up call to the governing bodies of British sport that the days of self-regulation of the occupational diseases their employees may contract should end.
Frankly, it’s hard for me, as a former top official at the US Occupational Safety and Health Administration (OSHA) – and one of the pioneers over the past 35 years in helping to develop modern methods of quantitative risk assessment and cost-benefit analysis – to imagine a more clear and more mature statement about risk, regulation and freedom tempered by responsibility than this magnificent quote from the DCMS report: “It will never be possible to ensure that sport is one hundred percent safe. It should, however, be expected that participants are aware of the risks involved and that there is a precautionary approach to risk management. The Government cannot avoid taking a proactive role in ensuring that this occurs.”
But whose ‘precaution’ is the DCMS endorsing?
However, I am left seriously in doubt about what the Committee means by ‘precautionary’, and about how ‘unsafe’ they actually think professional contact sports are at present. These are not mere details, and the ‘devil’ in this controversy lies in these overarching non-details.
The perennial failure to explain what ‘precautionary’ means certainly originated long before this report. The ‘precautionary principle’ can mean almost whatever an advocate wants it to mean, as all it requires is an outcome to be feared and a vague commitment to do ‘whatever it takes’ to avert it. So, while the principle is more often thought of as a progressive tenet, it was also used deliberately by conservatives so as to exaggerate the probability that Iraq had weapons of mass destruction in 2003, and led to a US invasion of that country, one that found no such weapons to ‘prevent’.
In controversies involving environmental risks, ‘precautionary’ often is assumed to mean ‘use worst-case thinking to avoid health and ecological damage under uncertainty’, but it is often the forces most concerned about hurting profits and revenue who exaggerate harm in order to avoid what they most fear. So then what would be ‘a precautionary approach to risk management’ in addressing brain disease in sport? Avoiding disease at any cost? – or avoiding cost (in the form of expenses, rule changes, compensation, or reduced ticket sales) at any cost? Giving even one example in the report of any kind of ‘precautionary’ action the Committee endorses would have shed light on this convenient and misused term.
Still some junk amid the science
The Committee also has repeated, perhaps inadvertently, some of the unscientific observations and one-sided platitudes that have hijacked the debate about the relationship between RHI and brain disease in sport. For example:
- The report cites approvingly a study finding that all-cause mortality was lower in a group of football (i.e. soccer) players than in the general population. No one who got through the first week of a general epidemiology course would make this mistake, at least not by accident: of course elite athletes live longer than non-athletes. The only appropriate way to gauge the effect of RHI on longevity is, as others have done, to compare pro athletes in sports with RHI to those in sports without it (such as baseball). Studies like these have found that American football players suffer from neurodegenerative diseases at greater frequency than other pro athletes.
- It repeats one of the most transparently illogical excuses for RHI – that ‘an active lifestyle promotes overall good health’, and even increases ‘community and economic development’. This truism is akin to saying ‘hydration is important, so drink either water or bleach, whatever you prefer’. There are, I hope needless to say, myriad ways to gain the personal and community benefits of strenuous activity without the risks of RHI.
- DCMS repeats the ‘truthy’ mantra that the science on RHI and brain disease is incomplete (“there is a need to understand the mechanisms by which neurological disease occurs”, states the report). It would indeed be lovely, after nearly 100 years, if we understood the molecular mechanism(s) by which smoking cigarettes causes lung cancer – but for decades, societies have been content to help reduce this exposure, without knowing exactly why this intervention clearly increases longevity. Insisting on full knowledge could be a naïve impulse of basic researchers, or it could be the clever setting of an infinitely-receding finish line by those who would profit from infinite delay.
Why only look backward?
The other key term that the Committee invokes but doesn’t really deliver on is ‘proactive’. Yes, employers and regulators must be ‘proactive’, but this report explicitly and tacitly only discusses injury reporting, medical treatment and possible compensation to victims, all of which are quintessentially reactive and after-the-fact. Where is the call to identify and reduce exposures to RHI, so that fewer injuries need to be reported, fewer workers need to be treated and fewer families need compensation after tragedy befalls the retired athlete?
Even the Report’s call for increased injury reporting lacks practicality. The key recommendation in this regard is that “all organised sports should be required to report any event that might lead to acquired brain injury”. This could be interpreted as a bold and ambitious new programme, or as something so over-inclusive as to be farcical. The science currently indicates that every concussive AND sub-concussive hit to the head (athlete-to-athlete, athlete-to-ground, or ball-to-athlete) can increase, perhaps only by a tiny increment, the probability that the athlete will eventually develop brain disease. Surely no one is calling for a reporting system that would tally up a dozen or more impacts every time a football is ‘snapped’ and the 22 players interact (speaking of ‘American football’ here).
So the Committee must be thinking of something like ‘report all impacts that cause a loss of consciousness’. How would this information be useful, and how would it reduce disease incidence, given that it is only reporting, not exposure reduction, medical follow-up, rule change or really anything other than paperwork? Given that the UK government has concluded that “it is for each sport to determine the best protocols for their sport”, is there any reason to think that a reporting system will do anything other than give the sports authorities licence to say they ‘have been regulated and are complying?’
What HSE could do in response
When spurred to action by their legislators, regulatory agencies in my experience tend to respond in one of two blunt ways: they either rush into detailed command-and-control regulation, which can be unpopular and clumsy, or they content themselves with purely voluntary guidance, which has a poor track record of improving workplace (and other) outcomes.
I’d like to suggest that the UK consider a middle-ground way to design an occupational health intervention in sport; with the Harvard Football Players Health Study, I recommended this to US OSHA (to no response…) in a 2018 law-review article. Twenty years before, OSHA had pioneered a series of ‘enforceable partnerships’ with various industry sectors (the most extensive one of these was with the manufacturers and installers of fibreglass insulation).
These agreements sought to combine the best features of industry self-regulation with those of specific rules. They basically offered an industry sector a refuge from regulation, if the industry developed its own comprehensive code of conduct for how it wished to improve health and safety for its employees, and if it ceded to the government the right to enforce the promises made in that code. In other words, a contract is written between the industry and society, using terms and conditions the industry believes are feasible and helpful (based on its unique knowledge of its own processes, risks and economics), and the regulatory agency is empowered to penalise the industry if it doesn’t live up to its own commitments.
What HSE may actually do
The sad reality, though, is that no ‘call to action’, even from a group of MPs, will make any difference in a system if the government regulator is weak, ‘captured’, overwhelmed or uncreative. In both the UK and the US, professional sport is lucrative, immensely popular with voters and protected to a significant extent by lawmakers. Couple that with the historic unwillingness of national governments worldwide to take the immense risks of chronic disease in workplaces nearly as seriously as they take the similar but smaller risks from environmental pollution, and we have a possible recipe for lip service and inaction.
I have to say, though, that HSE’s response to the DCMS report, as expressed in a press statement on 13 August to the British Safety Council, disappointed even this cynic. HSE stated that: “On the whole we would not expect to be involved in incidents where sportspeople (either professional or amateur) have been injured during normal participation in a sporting event… Most sporting activities, by their very nature, present a risk of serious injury to those who voluntarily take part.
As a regulator we believe sports governing bodies are best placed to make judgements on the risks and we would expect them to regularly review their rules and procedures as appropriate.”
It’s unfortunate, in my view, for HSE to appear to eschew any thought of regulation or even partnership with sport, and for it to react to the Committee’s concern that “we are astounded that sport should be left by HSE to mark its own homework” by a mere restatement of this very abdication.
But the more troubling part of the HSE statement is its dismissal of sports risks as mere ‘injuries’. No one, I think, expects either the UK or US government to set about to reduce contusions and sprains among professional athletes. These are indeed ‘part of the job’, fully disclosed to the workers and generally reflected in athletes’ incomes. But we have all now learned that contact sport poses risks of grave, chronic and progressive disease that are night-and-day different from injury risks.
I wish I understood how an agency with ‘Health’ at the beginning of its name can imply it only cares about its ‘safety’ mission, while stopping at self-regulation to address that responsibility. HSE has done yeoman’s work in health; it has outpaced the US to some extent in its regulation of workplace exposures to carcinogens, and its scientists continue to conduct landmark research to reduce the incidence of occupational cancer in the UK.
So I urge HSE to rethink its haughty response to the DCMS report, to recognise that contact-sport athletes are workers who face exposures no less serious than miners breathing coal dust or furniture strippers inhaling dichloromethane, and to work with the legislature and the industry to begin to proactively reduce the future incidence of CTE and related diseases that are ‘undeniably’ associated with working as an athlete.
Adam M. Finkel, Sc.D., CIH, was the chief regulatory official at OSHA from 1995–2000 and later chief of OSHA operations in the Rocky Mountain region of the USA.
He is currently Clinical Professor of Environmental Health Sciences at the University of Michigan School of Public Health.
The views expressed in this article are his own and not necessarily those of the University of Michigan. Contact him at: bit.ly/3sAzY9t
By Emma Evans, Pinsent Masons LLP on 12 October 2021
Working with any gas and gas appliances can be inherently risky and unsafe, if not managed correctly.
By Joanne Moseley and Danielle Parsons, Irwin Mitchell on 27 September 2021
Earlier this year, the European Parliament asked the European Commission to come up with a new EU (European Union) law which would give employees a right to disconnect from work-related tasks, activities and electronic communication during non-work hours without consequences, and to establish minimum standards for remote work.
By Geraint Davies MP on 07 June 2021
After a year of lockdowns to tackle the pandemic, it would seem odd to accuse the government of not prioritising our health, but that’s the case when it comes to air quality and the Environment Bill.