Martyn's Law aims to improve steps taken in relation to security and preparation in the event of a terrorist attack for certain premises and events across the UK. By legislating, the government hopes to mitigate and reduce the risk of harm through terrorist attack.

Does it apply to NHS Bodies and the provision of healthcare?

It is expected that, when enacted, this legislation will apply to anyone responsible for certain publicly accessible locations, provided certain attendance threshold are met, and used for purposes including (but not limited to) entertainment and leisure, sports grounds, public areas of local and central government buildings and places of worship, healthcare and education and is expected to place additional requirements on those responsible for these premises.

It will apply to sites used for the provision of healthcare and NHS bodies will be subject to its requirements. The Bill includes a mix of civil sanctions and criminal offences for non-compliance.

The Responsible Person and Qualifying Premises – vital definitions

The "responsible person" is the person responsible for "qualifying premises" and is the person (or entity) on whom the obligation to comply with the duties in Martyn's Law applies.

Qualifying premises includes a building or part of a building used primarily for one of the uses particularised in Schedule 1 of the Bill. This includes use as a hospital or for the provision of healthcare.

Pursuant to the Bill, the responsible person for the qualifying premises used as a hospital can be the NHS Trust or NHS Foundation Trust or, in any other case, the governing body of the hospital.

For all other uses for the provision of healthcare, or managing the NHS Estate, the responsible person is the person with control of the qualifying premises in respect of their use, which may include an NHS Trust, NHS Foundation Trust or other NHS body.

What are Standard Premises and Enhanced Duty Premises?

The obligations in the Bill apply to standard duty premises and enhanced duty premises.

Standard Premises, the SIA and Public Protection Measures – what does this mean?

If it is reasonable to expect 200 to 799 individuals may be present on qualifying premises at the same time in connection with its use the premises will be standard duty premises.

Where an NHS Trust, Foundation Trust or other NHS body is responsible for standard duty premises, they must notify the regulator (Security Industry Authority ("SIA") when they become responsible for that premises and assess and keep under review reasonably practicable "Public Protection Measures".

Public Protection Measures are the monitoring of, entry into and exit from and physical safety and security of the qualifying premises that are appropriate to reduce the vulnerability of any qualifying premises to acts of terrorism, and to reduce the risk of physical harm to individuals in the event of an act of terrorism occurring on the qualifying premises or within the vicinity of the same.

These measures will need to be communicated to those needed to respond to a terror attack (e.g. employees, volunteers, and contractors).

Enhanced Duty Premises – additional duties

Additional enhanced obligations apply to any qualifying premises that are likely to have over 800 people present at the same time (enhanced duty premises),

These additional obligations include:

• The requirement to prepare and keep updated a document containing any Public Protection Measures
• A risk assessment as to how these measures will reduce the vulnerability of the premises or the risk to individuals, and
• A statement of any further measures in place or proposed to be put in place in this regard and to appoint a designated senior individual if the person responsible for enhanced duty premises is not an individual

The responsible person must also co-operate with other responsible persons if more than one person is responsible for qualifying premises, and, in the case of the wider NHS Estate, this is likely to impose a requirement for co-operation across multiple NHS bodies and occupying third parties.

Scoping which NHS properties will be affected

Whether particular property falls within scope of Martyn's Law may present particularly challenges for the NHS Estate.

Groups of Buildings

The law will apply to "groups of buildings" that could include, for example, a hospital complex. Characteristics of a "group of buildings" are that they are in close geographical proximity and share the same responsible person).

Groups of buildings will require a co-ordinated approach to be taken to delivery of procedures and/or measures required pursuant to Martyn's Law. NHS Trusts and Foundation Trusts, NHS bodies and occupying third parties will need to consider the extent to which parts of NHS Estate comprises a "group of buildings" and what impact this has in terms of compliance.

Multiple Uses and "the Principal Use"

Scope is also relevant to NHS Estates where buildings are put to multiple uses. For example, the primary use of a building might be as a hospital, but there may well be other ancillary uses (e.g. retail, food and drink).

In terms of assessing compliance, the relevant use is the principal use to which the premises is put. The government recognises that, where there are multiple uses, determining the principal use might be complicated so will publish detailed guidance and cases studies to assist responsible persons meeting their obligations.

What are the consequences of non-compliance?

The effect of non-compliance runs the risk of negative reputational and regulatory consequences for NHS Trusts, Foundation Trusts and NHS bodies in addition to specific sanctions which can be issued by the SIA. The Bill also contains criminal offices for non-compliance.

In the event of non-compliance, the SIA may issue sanctions if it has satisfied itself that a responsible person is contravening or has contravened a relevant requirement.

These include:

• A compliance notice requiring the responsible person to take specified steps within a defined period to ensure compliance and provide evidence of the same to the SIA
• A restriction notice requiring compliance with specified prohibitions or restrictions relating to the use of the premises for a defined period (not to exceed six (6) months), and
• A variable monetary penalty up to £10,000 in respect of standard duty premises, and the higher of £18,000,000 or 5% of worldwide revenue in respect of an enhanced duty premises
• A daily monetary penalty of up to £500 per day for standard duty premises and £50,000 per day for enhanced duty premises

It is important that progress of the Bill is followed closely by those responsible for buildings used for healthcare purposes which could be Standard Premises or Enhanced Duty Premises and that buildings within the NHS Estate to which Martyn's law will apply are identified at an early stage.