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 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)

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 inspector’s 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 HSE’s 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.

18. 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.

19. 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.

20. 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.

21. 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 country’s 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 Britain’s 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

24. 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.

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. H&S 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 H&S 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.

33. 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.

35. 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 • EmployersLiability (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)

40. “NEW” LEGISLATION Physical agents directive • Noise • HAVS • Whole Body Vibration

41. Physical Agents 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 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)

42. 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)

43. 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 Changes to exposure standards

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

45. 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

48. 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

49. 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

50. THE END Thank you