HSC,HSE, Health and Safety Law

and Appointed/Approved Doctors

Dr Nerys Williams

DWP Medical Policy Advisor/

Principal Occupational Health Physician

IOEH May 2006

Introduction

Structure and organisation of HSC and HSE

Overview of basic principles of UK H&S Law with

specific mentions of COSHH, IRR, CAW, CLAW,

DAW Regulations

Recent changes, difference of opinion and new

legislation

Appointed doctors (who, what, why)

HSC and HSE

Mission “to ensure that risks to people’s 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.

HSC

The BIGGER picture : DWP, Jane Kennedy Minister

Health and Safety Commission

Set up 1974

Responsible to the Secretary of State for administration of H&S 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

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)

Field Operations Directorate

Proactive routine inspection (single/multiple issue)

incident investigation

complaint follow up

special projects e.g. blitzes

Field Operations Directorate

Action is based on risk and principles of:

proportionality

consistency

transparency

targeting

Field Operations Directorate

An inspectors options :

Verbal advice

Written advice

Improvement notice

Prohibition notice (immediate or deferred)

Prosecution

Field Operations Directorate

Penalties

Fines – up to £20,000 in Magistrates Courts,

unlimited in Crown Court

Imprisonment

Manslaughter – dealt with by Crown Prosecution

Service

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

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)

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

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

Revitalising Health and Safety

Background

25 years post HASAWA

progress with safety but less with health

aim to reduce H&S failures by 30% over 10 years

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”

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!

Revitalising Health and Safety

Priorities

Sectors health, agriculture, construction

Topics musculoskeletal, stress, asthma,HAVS,

Accident topics slips/trips/falls/transport.

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

SFAIRP

“so far as is reasonably practicable”

legal term widely used in GB H&S 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.

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

H&S Law Coverage

HASAWA 1974 places duties on :

employers

employees

self employed

manufacturers

others (covers the public where work activities

affect them)

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

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.

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

H&S policy statement detailing organisation and

arrangements for carrying it out. Brought to notice

of employees (usually by poster)

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

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

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)

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 ?

COSHH 2002

Control of Substances Hazardous to Health

Regulations

Covers all substances which could cause harm including

biological agents and carcinogens .

COSHH

What hazardous materials/agents are not covered ?

Why not ?

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

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

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

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

Health surveillance

Under which regulations is health surveillance a

legal requirement ?

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*

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

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)

Management of Health and Safety at

Work Regulations 1999

Includes legislation covering

Pregnant and nursing mothers

Temporary workers

Young workers

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”.

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

“NEW” LEGISLATION

Physical agents directive

Noise

HAVS

WBV

Physical Agents

NoiseNAW 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

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)

Physical Agents

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

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)

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

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

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

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)

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

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)

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

THE END

Thank you