« Competency 5

• Competency 5 – Relationships with patients: Legal and ethical issues
• Competency 5 – Relationships with patients:Recognise the potential for conflicts of interest
• Competency 5 – Relationships with patients:Understand how occupational health is organised
• Competency 5 – Relationships with patients: Identify potential areas of conflict between interested parties
• Competency 5 – Relationships with patients:Recognise the potential pitfalls of inappropriate occupational health practice

Competency 5 – Relationships with patients:Understand how occupational health is organised

Objective: to have the knowledge, skills and attitudes to cope with ethical and legal issues in the management of patients with occupational problems

KNOWLEDGE

UNDERSTAND HOW OCCUPATIONAL HEALTH IS ORGANISED IN THE UK AND OUTLINE THE REQUIREMENTS OF HEALTH AND SAFETY REGULATIONS, CIVIL COMPENSATION AND DISABILITY DISCRIMINATION LAW.

1. HSE books – The Health and Safety System in Great Britain
2. Health and Safety Executive
3. Office of Public Sector Information – this site is very useful for accessing the latest pieces of legislation e.g. Disability Discrimination Act.
4. HSE, Health and Safety Law and Appointed/Approved Doctors– powerpoint presentation.

Occupational Health in the UK

Since joining the European Union (EU) the UK is required to interpret EU Heath and Safety Directives and to incorporate them into law as statutes or regulations.

Health and safety legislation has improved awareness of hazards and risks in the workplace, and has led to an improvement in the dissemination of occupational health and safety to industry.

Parliament provides several legislative acts to protect workplace health and safety. The most significant of which is the Health and Safety at work Act (HSWA) of 1974. This legislation is the UK’s equivalent of the European Framework Directive on occupational safety and health.

The Health and Safety Commission (HSC) is responsible for health and safety regulation in the UK. They are sponsored by the Department of Work and Pensions (DWP) and are ultimately accountable to the Parliamentary under Secretary for Work and Pensions.

The HSC mission is laid out below:

• Protecting people’s health and safety by ensuring risks in the changing workplace are properly controlled
• Conducting and sponsoring research
• Promoting training
• Providing information and advisory service
• Submitting proposals for new and revised regulations and approved codes of practice
• Maintaining the Employment Medical Advisory Service (EMAS) which provides advice on occupational health matters.

The HSC is supported by two enforcing authorities:

1. The Health and Safety Executive HSE:

The HSE inspector has responsibility to monitor health and safety in factories and high hazard employment such as railways, nuclear, off-shore, mines, quarries, hospitals and schools.

2. Local authorities:

The environmental health officer has responsibility to monitor health and safety in less hazardous employments such as offices and shops.

Health and Safety legislation is made up of ‘regulations’ ‘guidance’ and ‘codes of practice’. The majority of regulations and approved codes of practice still emphasize safety issues rather than occupational health issues. The legal responsibility of senior management is clearly spelled out in the legislation.

Regulations identify specific risks and lay out required action to be taken in response to them. Where appropriate the HSC will provide regulations in goal setting form and set out what must be achieved but not how. In some cases however the requirements are absolute. Here employers are required to fulfil the regulation explicitly.

Guidance and approved codes of practice provide advice on how to comply with the law and have special legal status. If an employer is found to have breached the health and safety law and has not followed the relevant provisions of an approved code of practice, the court will find them at fault, unless they can show they have complied with the law in some other way.

The enforcing authorities have the power to ensure that relevant laws are complied with and any breach of these laws can lead to actions that are outlined below:

• An informal warning: This can be verbal or in writing.
• An improvement or prohibition notice: The improvement notice sets a specific period of time in which changes need to be made, whilst a prohibition notice has a more immediate impact and is usually given when there is great risk to health or safety.
• Prosecution: This action is taken in cases of gross negligence and non compliance of the relevant laws. In order to prosecute there needs to be sufficient evidence and deemed to be in the public interest. E.g. death of an individual due to breaches of law, non compliance with prohibition or improvement notices.

A number of regulations have been issued under the HSWA, the most important of which are the Control of Substances Hazardous to Health Regulations (COSHH) 2002 and the Management of Health and Safety at Work Regulations (Management Regs) 1999.

COSHH 2002

The COSHH regulations require employers to control exposure to hazardous substances. The use of chemicals and any hazardous material could put people’s health at risk. The COSHH regulations aim is to protect employees and others who might be exposed to such hazards. To this end it sets out eight basic measures that employers (and sometimes employees) must comply with.

The eight measures are listed below:

1. Assess the risk
2. Decide what precautions are required.
3. Prevent or adequately control the exposure.
4. Ensure the control measures are assessed and then maintained.
5. Monitor the exposure.
6. Provide appropriate health surveillance.
7. Prepare plans and procedures to deal with any accident, incidents or emergencies.
8. Ensure employees are adequately informed, trained and supervised.

Management Regs 1999

Management Regs 1999 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.

Other important pieces of legislation are outlined below:

• The ‘six-pack’ regulations came into force on the 1st of January 1993 as part of the European Directive. The Management Regs is considered one of the six pack, with the remaining five as follows:
• Display Screen Equipment Regulations 1992
• Manual Handling of Loads Regulations 1992
• Personal Protective Equipment Regulations 1992
• Provision and Use of Work Equipment Regulations 1998 (updated)
• Workplace (Health, Safety and Welfare) Regulations 1992

• The Reporting of Injury, Disease and Dangerous Occurrences Regulations 1995 RIDDOR requires employers to report some injuries, diseases and dangerous occurrences. This allows the HSE and other enforcing authorities to investigate serious accidents and build a picture of how and where risks arise. The types of incidents that need reporting are listed below.
• Death or major injury
• An injury that is not major but requires an employee to be off work for more than three consecutive days or unable to carry out their full range of tasks following the injury for more than three consecutive days
• A work related disease
• A dangerous occurrence that did not lead to a reportable injury but clearly could have done

Occupational health services

In the UK there is no legal obligation for an employer to provide an occupational doctor or nurse at the workplace, but there is an obligation is to provide first aid. Hence, employers are required to provide adequate first aid cover in the workplace. This cover takes the form of employees being trained by recognised bodies to carry out basic first aid in the workplace.

The provision of occupational health services across the UK is sporadic, and is influenced by the size of the company and the nature of the industry. In the public sector such as the NHS or civil service 72% of employees have access to an occupational health doctor at the workplace, whereas only 20% of workers in the private sector have such a service.

In some industries however, there is a statutory obligation to provide regular health screening. These are environments in which employees might be at significantly high risk to specific health hazards associated with their work e.g. ionising radiation, lead, or asbestos. In such industries there is a duty on the employer to provide regular screening by an ‘appointed doctor’ or a doctor employed by EMAS. An appointed doctor is a doctor who is recognised as having received training to a required standard in the health risks associated with a specified hazard.

Broadly speaking the provision of occupational health in the UK can be divided into:

• Government Services-Employment Medical Advisory Service (EMAS)
• Provision in industry/private sector.
• NHS

Civil Compensation

Law is made by parliament and judges. Law made by parliament (House of Commons, House of Lords and the Queen) is known as legislation or ‘statute law’. Most of criminal law i.e. law concerned with the punishment of those who offend against society as a whole is in the form of Acts of Parliament. The most important statute in relation to occupational medicine is the Health and Safety at Work Act (HSAW).

Civil law is concerned with disputes between individuals or organsations and usually leads to financial compensation rather than custodial sentences. It is not in the form of statute, but is created mainly via precedent and made by judges in the course of hearing individual cases. The other main distinction in civil law lies in ‘burden of proof’. A criminal case must be proved ‘beyond reasonable doubt’, where as a civil case must be proved ‘on the balance of probabilities’.

Civil law is relevant for occupational health professionals and is seen in the following:

1. Negligence. Where failure to take reasonable care causes foreseeable damage.
2. Breach of statutory duty.

Disability Discrimination Law

The Disability Discrimination Act 1995, as amended by the Special Educational Needs and Disability Act 2001 applies to all employers and everyone who provides a service to the public, except the Armed Forces.

Under the Disability Discrimination Act (DDA), all employers must make reasonable adjustments so they do not discriminate against disabled customers or employees. This affects the way employers treat staff, job applicants and customers. The law has been designed so that employers have to make what are called reasonable adjustments. If they fail to do what is reasonable, a disabled person could take legal action against their employer for treating them unfairly.

Disability is defined under the act as a ‘physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities.’

To define this statement further;

• Physical impairment includes both sensory and motor problems.
• Mental impairment includes mental illnesses and learning disabilities.
• Substantial is not well defined in the Act, but described as an effect which is more than minor or trivial.
• Long term adverse effect is one which has lasted or likely to last for more than twelve months or the rest of the individual’s life.
• Normal day to day activities include mobility, manual dexterity, physical co-ordination, and continence, ability to lift, carry or otherwise move every day objects, speech, hearing and eyesight, memory, ability to concentrate, learn and understand.
• Reasonable adjustments would include altering premises, allocating some duties to another employee, altering working hours, or supplying additional training.
• The employer only has to act reasonably, and can take into account practicality, financial costs, employer’s financial resources and availability of government or charitable assistance.

If an individual who is wheelchair bound applies for a secretarial post in a three storey building with no lifts, is turned down due to concerns over access, the employer could be prosecuted for failing to consider reasonable adjustments. The employer should consider reasonable adjustments such as rearranging the system of work so that the individual is located on the ground floor as well as reviewing disabled access to the building.

It is important to be clear of the role of occupational health physician (OHP). An occupational health physician provides advice to employers as to the likelihood of individuals being protected by the DDA. The final decision as to whether the individual is protected or not however is a legal one decided in a court of Law.

It is not always apparent to employers if individuals have medical conditions that are protected by the DDA. Quite often employers claim that they have insufficient information about employees and the details of any disability. However if the occupational health team are aware of an employees disability then in accordance with the DDA 1995, it will not be a defense for an employer to claim that they did not know of the employee’s disability. This is because the information gained by the medical officer on the employer’s behalf is imputed to the employer. Even if the employee does not want their line manager to know that they have a disability, the occupational health officer’s knowledge means that the employer’s duty under the act applies. Therefore it might be necessary for the line manager to make reasonable adjustments without knowing precisely why they have to do so. More detailed information can be found in the Disability Rights Commission’s Code of Practice: Employment and Occupation.