HSC,HSE, Health and Safety Law and AppointedApproved Doctors

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

• Dr Nerys Williams
• DWP Medical Policy Advisor/
• Principal Occupational Health Physician
• IOEH May 2006

2
Introduction

• Structure and organisation of HSC and 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
HSC and HSE

• Mission to ensure that risks to peoples health
  and safety from work activities are properly
  controlled
• HSC administers the Act, proposes regulations and
  approved codes of practice, makes arrangements
  for research and appoints Advisory committees.
• HSE executive 3 people appointed by HSC. 4000
  staff undertakes functions delegated by HSC and
  enforces HASAWA. Also provides policy advice to
  HSC and conducts licensing and approvals.

4
HSC

• The BIGGER picture DWP, Jane Kennedy Minister
• Health and Safety Commission
• Set up 1974
• Responsible to the Secretary of State for
  administration of HS through Commissioners
• Duty to secure the H,S and W of persons at work
  and protect the public generally from risks at
  work.
• 10 people (9 part time), Chair Bill Callaghan (
  TU)
• Reps from employers, employees, consumers and LA

5
HSE

• Operational arm
• work directed by HSC
• responsible for enforcement, research, publicity
  and advice
• divided into directorates
• policy and administration
• technical and research
• enforcement ( FOD, offshore, nuclear,
  construction)

6
Field Operations Directorate

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

7
Field Operations Directorate

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

8
Field Operations Directorate

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

9
Field Operations Directorate

• Penalties
• Fines up to 20,000 in Magistrates Courts,
  unlimited in Crown Court
• Imprisonment
• Manslaughter dealt with by Crown Prosecution
  Service

10
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

11
FOD arrangements

• 6 divisions ( including Wales!) plus Scotland
• Each division has team of regulatory inspectors
  and specialists
• Specialists include occupational hygiene,
  construction and mechanical engineers and
  radiation)

12
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

13
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

14
Revitalising Health and Safety

• Background
• 25 years post HASAWA
• progress with safety but less with health
• aim to reduce HS failures by 30 over 10 years

15
Revitalising Health and Safety

• 10 point Strategy
• promote better working conditions
• involve the workforce more
• make health a top priority
• positively engage small firms
• motivate employers
• better self regulation
• partnerships
• Government lead by example
• education at every level
• design it in

16
Revitalising Health and Safety

• Targets
• reduce days lost due to work related injury and
  ill health by 30 by 2010
• reduce the incidence rate of fatal and major
  accidents by 10 by 2010
• reduce the incident rate of cases of work related
  ill health by 20 by 2010
• achieve half of the improvement under each target
  by 2004!

17
Revitalising Health and Safety

• Priorities
• Sectors health, agriculture, construction
• Topics musculoskeletal, stress, asthma,HAVS,
• Accident topics slips/trips/falls/transport.

18
(No Transcript)
19
Occupational Health and Safety Law

• General philosophy
• duty holders responsibility
• self regulation within a framework
• Co-operation and consent
• Goal setting not prescriptive
• Concept of SFAIRP

20
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.

21
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

22
HS Law Coverage

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

23
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

24
Law

• Criminal versus Civil
• HASAWA is criminal law so no insurance against
  prosecution. Directors have liabilities they
  cannot avoid. They can delegate tasks but not
  overall responsibility.

25
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)

26
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

27
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

28
Main regs under HASAWA 1974

• Health and Safety (First Aid) regs 1981
• Ionising Radiation Regulations (85) 1999
• Control of Asbestos at Work Regs (87) 2002
• Control of Substances Hazardous to Health Regs
  (87) 2002
• Reporting of Injuries, Diseases and Dangerous
  occurrences regs (85) 1995
• Control of Lead at Work Regs (81) 2002
• Compressed Air Regs 1996
• Diving at Work Regs 1997
• (plus construction etc etc)

29
Health and Safety(First Aid) Regulations 1981

• An employer decides he no longer needs to send
  employees on First Aid courses as you, the newly
  appointed occupational physician, are now
  visiting the site weekly and he is only 15
  minutes walk from the hospital casualty
  department.
• What is your view regarding his compliance with
  the regulations ?
• Who counts as first aiders for the purposes of
  the regulations ?

30
COSHH 2002

• Control of Substances Hazardous to Health
  Regulations
• Covers all substances which could cause harm
  including biological agents and carcinogens .

31
COSHH

• What hazardous materials/agents are not covered ?
• Why not ?

32
COSHH

• Reg 11 health surveillance
• Schedule 6 substances and process ( app dr only)
• Generic if criteria are met i.e. identifiable
  health effect, reasonable chance of occurring,
  valid techniques for detecting, surveillance
  would further protect e.g. skin or respiratory
  sensitisers (competent person, nurse, doctor)
• Requires records to be kept

33
Article 118A

• Pre EU HASAWA, Noise at Work regs, CAW, CLAW,
  IRR, Compressed Air regs
• Post EU COSHH, 6 pack and subsequent Pregnant
  Workers, Young Persons, Temporary Workers,
  Working Time Regs

34
6 Pack

• Management of Health and Safety at Work Regs 1992
  (now 1999) Reg 6
• Provision and Use of Work Equipment Regs 1992
  (now 1998)
• Workplace (H,S and W) Regulations 1992
• Manual Handling Operations Regulations 1992
• Personal Protective Equipment at Work Regulations
  1992
• Health and Safety (Display Screen Equipment)
  Regulations 1992

35
Generic Framework

• identify the hazard
• assess the risk
• control and reduce the risk (elimination,
  substitution,enclosure, at source rather than at
  the individual level)
• check controls work ( e.g. monitoring)
• provide information, instruction and training
• health surveillance if indicated

36
Health surveillance

• Under which regulations is health surveillance a
  legal requirement ?

37
Main regs under HASAWA 1974

• Health and Safety (First Aid) regs 1981
• Ionising Radiation Regulations (85) 1999
• Control of Asbestos at Work Regs (87) 2002
• Control of Substances Hazardous to Health Regs
  (87) 2002
• Reporting of Injuries, Diseases and Dangerous
  occurrences regs (85) 1995
• Control of Lead at Work Regs (81) 2002
• Compressed Air Regs 1996
• Diving at Work Regs 1997

38
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

39
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)

40
Management of Health and Safety at Work
Regulations 1999

• Includes legislation covering
• Pregnant and nursing mothers
• Temporary workers
• Young workers

41
Management of Health and Safety at Work
Regulations 1999

• Includes in Regulation 3 the need for suitable
  and sufficient risk assessment. to identify
  groups of workers particularly at risk e.g. young
  and inexperienced workers, disabled staff, new or
  expectant mothers.

42
Other law relevant to OH

• Employers Liability Insurance
• Disability Discrimination Act 1995 ( remember all
  employers covered from October 2004)
• 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)
• RIDDOR 1995

43
NEW LEGISLATION

• Physical agents directive
• Noise
• HAVS
• WBV

44
Physical Agents

• After (now) 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 new regs by 15 February 2006
• Before
• 1st action level 85 dB(A)
• 2nd action level 90 dB(A)
• peak sound pressure 200 pascals

45
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

46
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

47
(No Transcript)
48
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

49
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

50
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)

51
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

52
Sources of Information ( on areas not covered)

• L5 COSHH ACOP and www.hse.gov.uk 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
• EH40/2002 Occupational exposure limits ( updated
  annually 2003 supplement)

53
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, free leaflets
• www.nrpg.org - general information on radiation
• www.hmso.gov.uk for statutory instruments

54
THE END

• Thank you