HSE, Health and Safety Law and Appointed/Approved Doctors

1
HSE, Health and Safety Law and Appointed/Approved
Doctors

• Dr Nerys Williams
• DWP Medical Policy Advisor/
• Principal Occupational Health Physician
• IOEH Feb 2011

2
Introduction

• Structure and organisation of HSE
• Overview of basic principles of UK HS Law with
  specific mentions of COSHH, IRR, CAW, CLAW, DAW
  Regulations
• Recent changes, difference of opinion and new
  legislation
• Appointed doctors (who, what, why)

3
In 2010..

• 28.5 million working days (equivalent to 1.2 days
  per worker) were lost to injury and ill health
  last year
• 5.1 million days due to injury
• 23.4 million days due to ill-health
• 233,000 People reported being injured at work
• Over 4,000 died from asbestos related diseases

4
HSE

• Mission to prevent death injury and ill-health
  in Great Britain's workplaces
• HSE administers the Health and Safety at Work Act
  (HASAWA), proposes regulations and approved codes
  of practice, makes arrangements for research and
  appoints Advisory committees.
• It enforces HASAWA (with local authorities). Also
  provides policy advice to ministers and conducts
  licensing and approvals.

5
HSE

• The BIGGER picture Reports to Secretary of
  State for Work and Pensions
• The Board
• Consists of 9-12 non-executive directors from
  employer, employee, local authority and consumer
  interests
• Has a part-time Chair
• Gives strategic direction to the HSE Chief
  Executive and Senior Management Team
• Gives advice to ministers

6
HSE

• Strategic direction by HSE board
• responsible for enforcement, research, publicity
  and advice
• divided into directorates including policy,
  hazardous installations and communications. It
  has a research laboratory (HSL). Most enforcement
  is done by the Field Operations Division (FOD)
  with separate divisions for some sectors such as
  nuclear, off-shore, and hazardous installations.
• It shares enforcement with local authorities.

7
Field Operations Directorate

• Proactive routine inspection (single/multiple
  issue)
• incident investigation
• complaint follow up
• special projects e.g. blitzes

8
Field Operations Division

• FOD, the largest operational inspectorate in HSE,
  covers many employment sectors including
  construction and agriculture, general
  manufacturing, engineering, food and drink,
  quarries, entertainment, education, health
  services, local and central government and
  domestic gas safety.

9
Field Operations Directorate

• Action is based on risk and principles of
• proportionality
• consistency
• transparency
• targeting

10
Field Operations Directorate

• An inspectors options
• Verbal advice
• Written advice
• Improvement notice
• Prohibition notice (immediate or deferred)
• Prosecution

11
Field Operations Directorate

• Penalties
• Fines up to 20,000 in Magistrates Courts,
  unlimited in Crown Court
• Imprisonment
• Manslaughter, including corporate manslaughter
  (Corporate Homicide in Scotland) dealt with by
  Crown Prosecution Service or Procurator Fiscal.

12
Powers of inspectors

• Appointed under HASAWA ( Section 19)
• Can only exercise powers in their area of
  responsibility (cf LA) and use powers only for
  the purposes of the Act
• Must be appointed in writing and be suitably
  qualified
• Can enter and take a constable or authorised
  person
• Examine and investigate
• Require discovery of books and documents
• Measure and sample
• Leave undisturbed, take possession and dismantle
• Require a signed statement of truth

13
FOD arrangements

• It has seven geographical divisions
• Each FOD division typically has
• operational groups, each with teams of inspectors
  carrying out inspection and enforcement work
• A sector group with the national lead for one or
  more industries, eg construction, agriculture and
  wood
• access to a specialist group of engineers,
  scientists, medical inspectors and occupational
  hygiene inspectors providing expertise for the
  operational and sector work and
• Other staff who act as Workplace Contact
  Officers, deal with complaints and undertake
  publicity and promotional work

14
EMAS

• Employment Medical Advisory Service
• set up by HASAWA (Sections 55-60)
• legal duties to advise on gaining and retaining
  employment
• run appointed doctor and appeal systems
• advise, inspect, investigate, research and
  enforce
• same powers as regulatory inspectors

15
EMAS

• EMAS staff provide an expert, independent and
  consistent service to a wide range of people and
  organisations by
• ? investigating complaints and concerns of ill
  health raised by employers, employees, trade
  unions, members of the public and other health
  care professionals
• ? investigating ill health reports received from
  employers under the Reporting of Injuries
  Diseases and Dangerous Occurrences Regulations
  1995 (RIDDOR)
• ? helping other HSE inspectors and local
  authorities to make sure that people comply
• with health and safety law. This is an important
  part of its statutory duties
• ? providing advice at the workplace to employers,
  employees and trade unions
• ? providing expert advice to other doctors and
  nurses, in general health care and occupational
  health and
• ? providing support for HSEs occupational health
  campaigns.

16
EMAS

• Now medical and occupational health inspectors
• Part of Corporate Medical Unit
• New types of work national inspection
  programmes e.g. animal allergy, stress in social
  workers, MSD in printers
• Investigation of RIDDOR reports of disease
• Expert witness in Court
• Networking with key stakeholders and academic
  department
• Specific portfolios both sector and topic
  opportunity to develop expertise

17
HSE Strategy

• In 2009 the HSE published a strategy The Health
  and Safety of Great Britain which outlined its
  vision for dealing with health and safety and
  emphasised a number of key points including
• the need for strong leadership and partnership
  working,
• that the control of risks lies with those that
  create the risks,
• that health is just as important as safety,
• that worker involvement was essential and
• that the emphasis must be on real risk.

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HSE Strategy reasons for it

• The need for renewed momentum to improve health
  and safety performance.
• The need to respond to a wide range of risks
  from more small businesses, from new sectors and
  new technologies, as well as traditional
  industries and long-standing risks.
• The need to find new ways of engaging workforces
  in all workplaces of all shapes and sizes, using
  the knowledge we have gained from the past that
  properly involved unionised safety
  representatives achieved better health
• The need for leaders who are committed to
  promulgating a common-sense, practical approach
  to health and safety in their own organisations
  and throughout the supply chains they work with,
  motivated by the real business benefits, not
  exemption from regulatory scrutiny.
• The need to regain the value of the brand for
  what is real health and safety and challenge its
  devaluation as a synonym for unnecessary
  bureaucracy and an excuse for not doing things.

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Strategy - Aims

• The goals set out in the strategy have four clear
  objectives
• to reduce the number of work-related fatalities,
  injuries and cases of ill health
• to gain widespread commitment and recognition of
  what real health and safety is about
• to motivate all those in the health and safety
  system as to how they can contribute to an
  improved health and safety performance
• to ensure that those who fail in their health and
  safety duties are held to account.

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Strategy goals - 1

• To investigate work-related accidents and ill
  health and take enforcement action to prevent
  harm and secure justice when appropriate.
• To encourage strong leadership in championing the
  importance of, and a common-sense approach to,
  health and safety in the workplace.
• To motivate focus on the core aims of health and
  safety and, by doing so, to help risk makers and
  managers distinguish between real health and
  safety issues and trivial or ill-informed
  criticism.
• To encourage an increase in competence, which
  will enable greater ownership and profiling of
  risk, thereby promoting sensible and
  proportionate risk management.

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Strategy Goals - 2

• To reinforce the promotion of worker involvement
  and consultation in health and safety matters
  throughout unionised and non-unionised workplaces
  of all sizes.
• To specifically target key health issues and to
  identify and work with those bodies best placed
  to bring about a reduction in the incidence rate
  and number of cases of work-related ill health.
• To set priorities and, within those priorities,
  to identify which activities, their length and
  scale, deliver a significant reduction in the
  rate and number of deaths and accidents.
• To adapt and customise approaches to help the
  increasing numbers of SMEs in different sectors
  comply with their health and safety obligations.

22
Strategy Goals - 3

• To reduce the likelihood of low frequency, high
  impact catastrophic incidents while ensuring that
  Great Britain maintains its capabilities in those
  industries strategically important to the
  countrys economy and social infrastructure.
• To take account of wider issues that impact on
  health and safety as part of the continuing drive
  to improve Great Britains health and safety
  performance

23
Occupational Health and Safety Law

• General philosophy
• Duty holders responsibility
• Co-operation and consent
• Goal setting not prescriptive
• Concept of SFAIRP

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SFAIRP

• so far as is reasonably practicable
• legal term widely used in GB HS law
• aims to ensure control measures giving most risk
  reduction are taken but at a cost which is not
  grossly disproportionate to the benefit achieved.

25
Legal duty

• SRAIRP can be complied with by meeting
• Relevant good practice
• or otherwise reduce risks ALARP (as low as
  reasonably practicable) (campbell-fitzpatrick
  case)
• Relevant good practice ?
• based on technical feasibility, balance of costs
  and benefits, societal concerns, acceptable
  residual risk

26
HS Law Coverage

• HASAWA 1974 places duties on
• employers
• employees
• self employed
• manufacturers
• others (covers the public where work activities
  affect them)

27
Acts, Regulations, Approved Codes of Practice and
Guidance

• Act is the law (umbrella)
• Regulations are laws, usually made under HASAWA
• Usually goal setting, though sometimes have an
  absolute requirement. They implement EU
  directives.
• ACOPs are practical e.g.s of good practice and
  provide advice on how to comply (e.g. on what is
  reasonably practicable). Special legal status.
  Burden of proof on duty holder.
• Guidance interprets the law, helps people comply,
  gives technical advice but is not compulsory.

28
Law

• Criminal versus Civil
• HASAWA is criminal law so no insurance against
  prosecution.
• Main duty is on the creator of the risk usually
  the employer

29
HASAWA etc 1974

• Section 2 duties of employers
• Section 2(1) to ensure, so far as is reasonably
  practicable, the health, safety and welfare at
  work of all of his employees
• Section 2(3) 5 or more employees
• HS policy statement detailing organisation and
  arrangements for carrying it out. Brought to
  notice of employees (usually by poster)

30
HASAWA etc 1974

• Section 3 persons not in his employ not
  exposed to risks to their health or safety
• Section 6 manufacturers, suppliers
• Section 7 duties of employees to
• look after themselves and others
• acts and omissions
• co operate with the employer as necessary
• Section 8 interference and misuse of anything
  provided in the interests of health,safety or
  welfare
• Section 9 duty not to charge

31
HASAWA etc 1974

• Section 36 offences due to the fault of others.
  No need to prosecute employer
• Section 37 offences by the body corporate
  consent or connivance or neglect of a director,
  manager etc e.g. Harvestime Bakery. Implicit
  prosecution of company

32
Management of Health and Safety at Work
Regulations 1999

• Management Regs are probably the most influential
  of the regulations. They provide that an employer
  does the following
• Make suitable and sufficient assessment of risks
  to the health and safety of the employees.
• Take suitable protective and preventative
  measures to reduce those risks.
• Employ competent individuals to assist in the
  assessment and reduction of risks in the
  workplace.
• Provide health surveillance appropriate to the
  risks in the workplace.

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Control of Substances Hazardous to Health

• COSHH is the law that requires employers to
  control substances that are hazardous to health
  and to prevent or reduce workers' exposure to
  hazardous substances by
• finding out what the health hazards are
• deciding how to prevent harm to health through
  risk assessment
• providing control measures to reduce harm to
  health
• making sure they are used
• keeping all control measures in good working
  order
• providing information, instruction and training
  for employees and others
• providing monitoring and health surveillance in
  appropriate cases
• planning for emergencies.

34
Other main regs under HASAWA 1974 - 1

• Workplace (Health, Safety and Welfare)
  Regulations 1992 cover a wide range of basic
  health, safety and welfare issues such as
  ventilation, heating, lighting, workstations,
  seating and welfare facilities.
• Health and Safety (Display Screen Equipment)
  Regulations 1992 set out requirements for work
  with Visual Display Units (VDUs).
• Personal Protective Equipment at Work Regulations
  1992 require employers to provide appropriate
  protective clothing and equipment for their
  employees.
• Provision and Use of Work Equipment Regulations
  1998 require that equipment provided for use at
  work, including machinery, is safe.
• Manual Handling Operations Regulations 1992
  cover the moving of objects by hand or bodily
  force.

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Other main regs under HASAWA 1974 - 2

• Safety representatives and Safety Committees
  Regulations 1977 Require employers to consult
  with employees or safety representatives.
• Health and Safety (First Aid) Regulations 1981
  cover requirements for first aid.
• The Health and Safety Information for Employees
  Regulations 1989 require employers to display a
  poster telling employees what they need to know
  about health and safety.
• Reporting of Injuries, Diseases and Dangerous
  Occurrences Regulations 1995 (RIDDOR) require
  employers to notify certain occupational
  injuries, diseases and dangerous events.

36
Health surveillance

• Under which regulations is health surveillance a
  legal requirement ?

37
Health Surveillance

• Health surveillance is indicated
• COSHH
• Schedule 6 substances and processes
• Reg 11 when indicated and criteria met
• performed by responsible person, nurse or
  doctor
• Aim to provide information on the control of
  residual risk through examination, BM, BEM,
  enquiry/inspection, periodic review of records
• Feedback to company and records essential

38
Health Surveillance

• Plus Reg 6 of Management Regs
• health surveillance for physical hazards such as
  noise and vibration ( whole body and hand arm)
  was a requirement pre-2006
• Now implementation of the EU physical agents
  directive (see later)

39
Other law relevant to OH

• Employers Liability (Compulsory Insurance) Act
  1969
• Equalities Act 2010
• Employment Rights Act 1996
• Human Rights Act 1998
• Access to Medical Reports Act 1988
• Access to Medical Records Act 1990 (then Data
  Protection Act 1998)

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NEW LEGISLATION

• Physical agents directive
• Noise
• HAVS
• Whole Body Vibration

41
Physical Agents

• Since 2006
• 1st action level 80dB(A)
• (peak value 112 pascals)
• 2nd action level 85 dB(A)
• (peak level of 140 pascals)
• Limit value 87 dB(A) and 200 pascals
• ( takes into account hearing protection)

• Noise
• NAW effected 1/1/1980
• EC 86/188/EEC which came into effect in 2006
• Before
• 1st action level 85 dB(A)
• 2nd action level 90 dB(A)
• peak sound pressure 200 pascals

42
Physical Agents

• Now
• Exposure action value (EAV) 2.5 m/s2
• Exposure limit value (ELV) 5 m/s2.
• Total vibration value m/ment in 3 directions
• Current action level of 2.8 about 4 m/s2 (total
  vibration value TVV)

• Vibration
• Current situation no specific regs but covered
  by MHSW regs
• EC directive
• Before
• Action level of 2.8 m/s2 (HS(G)88)
• 3 directions but magnitude from dominant direction

43
Changes to exposure standards

• First there were
• Occupational exposure levels
• OES (occupational exposure standard)
• MEL (maximum exposure standard)

• Now there are
• Workplace exposure limits (WELs)
• Apply 8 principles of good practice for control
  of substances
• Ensure the WEL is not exceeded
• Ensure that substances that cause cancer, asthma,
  genotoxic is reduced ALARP

44
Appointed and Approved Doctors

• Appointed by HSE ( SMI) to undertake statutory
  medical examinations under specific regs for
  specific companies.
• Approved to undertake medical examinations of
  divers for the divers ( not the
  companies/employers)
• Appointed with certificate
• Up to 5 years
• Subject to satisfactory performance ( admin and
  technical knowledge of regs)
• No employer, no appointment

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Appointed Doctors

• Application ( MS38A and MS38B). DOM basic
  requirement.
• Visit to ensure competence and understanding of
  the role and requirements
• Responsibility by SMI for App Dr with support
  with manual, telephone advice
• Fees at discretion of doctor
• Duties to employee, employer and EMAS/HSE. Right
  of access to employees for medicals in work time
• CLAW visits to workplace essential, for all regs
  an understanding of work processes very important

46
Appointed Doctors

• May advise suspension ( CLAW or IRR)
• Must advise of right of appeal
• Has right to be paid for service
• Must maintain currency and attend updates as
  advised.
• ( for IR needs to have attended one day course
  before appointment)

47
Approved Doctors

• Approved under DAW regs 1987
• Must have attended basic course (4 days)
• 2 days in 5 years for update
• Equipment must be calibrated/serviced
• Doctor must be prepared to complete documentation
  and issue diver with certificate to dive.
• Prefer doctors who dive
• Applications via Mrs Barbara Bell, HSE Glasgow

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Sources of Information ( on areas not covered)

• L5 COSHH ACOP and COSHH indg136.pdf
• HSG 97 Step by step guide to COSHH assessment
• HSG110 7 steps to successful substitution of
  hazardous substances
• HSG 37 introduction to local exhaust ventilation
• HSG53 selection, use and maintenance of
  respiratory protective equipment
• HSG54 maintenance, examination and testing of
  local exhaust ventilation
• EH40 Occupational exposure limits ( updated
  annually )
• All these can be downloaded from HSE website

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Sources of information

• HSE info line 0845 345 0055
• HSE Books 01787881165
• Incident Contact centre (info on RIDDOR
  reportable conditions) 0845 300 9923
• HSE web page www.hse.gov.uk for information
  searches and copies of all regulations, guidance
  and codes of practice
• http//www.hpa.org.uk - general information
  various health issues including radiation
• www.hmso.gov.uk for statutory instruments

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THE END

• Thank you