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The Construction Industry Medical Adjudication, Medical Surveillance, and the Law Dr Greg Kew Specialist in Occupational Medicine - South African Society.

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Presentation on theme: "The Construction Industry Medical Adjudication, Medical Surveillance, and the Law Dr Greg Kew Specialist in Occupational Medicine - South African Society."— Presentation transcript:

1 The Construction Industry Medical Adjudication, Medical Surveillance, and the Law Dr Greg Kew Specialist in Occupational Medicine - South African Society of Occupational Medicine - Elixir Organisational Health

2 Who/what is SASOM? South African Society of Occupational MedicineSouth African Society of Occupational Medicine Official subgroup of the SA Medical Assoc. Official subgroup of the SA Medical Assoc. Association of doctors with an interest in occupational medicine Association of doctors with an interest in occupational medicine About 400 members (about 250 are active) About 400 members (about 250 are active) National executive (meets quarterly) National executive (meets quarterly) Regional branches (Natal, Inland, Cape) Regional branches (Natal, Inland, Cape)

3 SASOMs Mission To promote, protect and enhance the health of the working population of South Africa. To promote, protect and enhance the health of the working population of South Africa. To further all aspects of occupational health in South Africa. To further all aspects of occupational health in South Africa. To be the guardian for ethical and medical standards of Occupational Medicine. To be the guardian for ethical and medical standards of Occupational Medicine. To be the professional information resource on occupational health matters. To be the professional information resource on occupational health matters.

4 Preamble Construction work is a dangerous business Construction work is a dangerous business Which calls for regulation & control Which calls for regulation & controlso SASOM & SASOHN are delighted to make any contribution to reduce the risks, and improve the way in which regulation is implemented. SASOM & SASOHN are delighted to make any contribution to reduce the risks, and improve the way in which regulation is implemented.

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11 Overview The Risks The Risks The Regulations The Regulations The Issues with Certification The Issues with Certification The Way Forward The Way Forward

12 HOW HAZARDOUS IS THE CONSTRUCTION INDUSTRY? So....

13 Compensation Commissioner Stats Top ten!!Top five!!

14 Severity Statistics 0.3% 0.7% 0.9%

15 Occupational Diseases

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17 Comparison of OCD between Occupations in Construction

18 Take home message High rate of occupational disease High rate of occupational disease Probably very under-reported Probably very under-reported Noise Induced Hearing Loss Noise Induced Hearing Loss Silicosis / Asbestosis / lung cancer Silicosis / Asbestosis / lung cancer Ergonomics Ergonomics Heat / Cold Heat / Cold Chemicals Chemicals Hence the importance of a competent medical examination (certificate of fitness)!

19 THE CONSTRUCTION REGULATIONS Key features of the

20 The Regulations – Occupational Health Aspects promulgated on 18 July 2003 promulgated on 18 July 2003 employers are obliged to ensure that employees, in certain occupations, are in possession of medical certificates of fitness employers are obliged to ensure that employees, in certain occupations, are in possession of medical certificates of fitness Employees on supported or suspended platforms (15)(12)(a) Employees on supported or suspended platforms (15)(12)(a) Crane operators (20)(g) Crane operators (20)(g) Operators of all construction vehicles and mobile plants (21)(1)(d)(i) Operators of all construction vehicles and mobile plants (21)(1)(d)(i) Under the Fall Protection Plan Under the Fall Protection Plan The employer is required to ensure there is a process for evaluating the physical & psychological fitness to work at elevated positions CR(8)(2)(b) The employer is required to ensure there is a process for evaluating the physical & psychological fitness to work at elevated positions CR(8)(2)(b)

21 Medical Certificate of Fitness? "medical certificate of fitness" means a certificate valid for one year issued by an occupational health practitioner, issued in terms of these regulations, whom shall be registered with the Health Professions Council of South Africa; "medical certificate of fitness" means a certificate valid for one year issued by an occupational health practitioner, issued in terms of these regulations, whom shall be registered with the Health Professions Council of South Africa;

22 The new draft regulations

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25 The proposed certificate

26 The issues with the certification Did the legislator mean a doctor or a nurse? Did the legislator mean a doctor or a nurse? Who should determine fitness for those who work in Fall-Risk Positions (Reg 8)? Who should determine fitness for those who work in Fall-Risk Positions (Reg 8)? Must the person who provides the certification personally conduct the medical tests? Must the person who provides the certification personally conduct the medical tests? How are minimum standards of fitness standardised? How are minimum standards of fitness standardised? Psychological Fitness? – it is assumed this will go. Psychological Fitness? – it is assumed this will go.

27 DID THE LEGISLATOR ACTUALLY MEAN A DOCTOR OR A NURSE? So....

28 Why this question? "medical certificate of fitness" means a certificate valid for one year issued by an occupational health practitioner, issued in terms of these regulations, whom shall be registered with the Health Professions Council of South Africa; "medical certificate of fitness" means a certificate valid for one year issued by an occupational health practitioner, issued in terms of these regulations, whom shall be registered with the Health Professions Council of South Africa;

29 Other equivalent safety-sensitive fitness Certifications Mining Industry Mining Industry Mines Health and Safety Act - OMP Mines Health and Safety Act - OMP Transport Industry Transport Industry National Road Traffic Act – medical doctor National Road Traffic Act – medical doctor Others: Others: OHASA: Diving Regs - medical doctor OHASA: Diving Regs - medical doctor Aviation, Maritime, Trains, etc. – medical doctor Aviation, Maritime, Trains, etc. – medical doctor

30 So it seems appropriate that highly safety- sensitive positions Such as.. Employees on supported or suspended platforms (15)(12)(a) Employees on supported or suspended platforms (15)(12)(a) Crane operators (20)(g) Crane operators (20)(g) Operators of all construction vehicles and mobile plants (21)(1)(d)(i) Operators of all construction vehicles and mobile plants (21)(1)(d)(i) are certified by a medical practitioner, rather than a nurse.

31 CONSTRUCTION REGULATION 8 (FALL PROTECTION) What about...

32 Construction Regulation 8 (Fall Protection)

33 Debate: Does this require a medical certificate? Does this require a medical certificate? Can the construction company get away with using a screening questionnaire administered by a supervisor to determine physical and psychological fitness? Can the construction company get away with using a screening questionnaire administered by a supervisor to determine physical and psychological fitness? If so, does this carry a risk in terms of the EEA (medical testing)? If so, does this carry a risk in terms of the EEA (medical testing)?

34 Clearly this questionnaire constitutes a medical test Employment Equity Act (Definitions)

35 What does the Employment Equity Act have to say about Medical Tests?

36 Employment Equity Act (Chapter II, Prohibition of Unfair Discrimination)

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38 COGP - Integration with Human Resource Policies

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41 Construction Regulation 8 (Fall Protection) Probably does warrant a certificate of fitness Probably does warrant a certificate of fitness Probably should ONLY be conducted by someone who is medically trained Probably should ONLY be conducted by someone who is medically trained

42 MEDICALLY TRAINED? But what do we mean by...

43 Just when you thought you had figured it all out... Certain certifications are issued by an OHNP (nurse)... and... others are issued by an OMP (doctor).

44 Not all Occupational Health Nurse Practitioners are trained to the minimum SANC standard! Being qualified as an OHNP does not automatically infer competence in doing medical examinations. Being qualified as an OHNP does not automatically infer competence in doing medical examinations. Being competent in conducting medical assessments does not automatically infer authorisation to do so independently (OH nurses functioning independently in mobile units, etc.) Being competent in conducting medical assessments does not automatically infer authorisation to do so independently (OH nurses functioning independently in mobile units, etc.)

45 OHNPs are possibly not allowed to conduct examinations and certification independently! Only authorised to conduct examinations if; Competent (trained & experienced) Competent (trained & experienced) Functioning within a health service designated by the Director General, functioning under the authorisation of a medical practitioner, and meeting certain conditions! Functioning within a health service designated by the Director General, functioning under the authorisation of a medical practitioner, and meeting certain conditions! (section 56 of the Nursing Act)

46 Take home message regarding OH nurses Receiving top priority by SASOHN and SASOM Receiving top priority by SASOHN and SASOM Legal advice is currently being actively engaged Legal advice is currently being actively engaged A written position paper will be published as soon as possible A written position paper will be published as soon as possible In the meantime... watch this space! In the meantime... watch this space!

47 YOU HAVE NOT PERSONALLY EXAMINED THE EMPLOYEE? Can you certify if...

48 Medical Certification without personal examination Why ask? Too few OMPs in remote areas. Too few OMPs in remote areas. Cost burden Cost burden

49 The Ruling from the HPCSA

50 Take home message It is deemed unacceptabe for anyone to issue a medical certification without having personally examined the patient / employee. It is deemed unacceptabe for anyone to issue a medical certification without having personally examined the patient / employee. But But Representation is being made by SASOM & SASOHN to this effect, based on a team approach where nurse & doctor function as a working unit. Representation is being made by SASOM & SASOHN to this effect, based on a team approach where nurse & doctor function as a working unit.

51 THE WAY FORWARD Proposals for...

52 Fitness Certification: The Way Forward Consider the Red Ticket concept: Consider the Red Ticket concept: The certification is issued by an accredited medical examiner, The certification is issued by an accredited medical examiner, to the individual, in his/her personal capacity, to the individual, in his/her personal capacity, through a mechanism endorsed by the industry, through a mechanism endorsed by the industry, thereby enabling industry-wide validity for the full 12-month period. thereby enabling industry-wide validity for the full 12-month period.

53 Team Approach – Nurse NOT independent Occupational Medicine Practitioner Occupational Medicine Practitioner Designs the program, sets the minimum standards Designs the program, sets the minimum standards Ensures a supervisory relationship is established with OHN, including written examination protocols. Ensures a supervisory relationship is established with OHN, including written examination protocols. Assumes responsibility for the actions of the OHN Assumes responsibility for the actions of the OHN Examines & certifies the workers in safety- sensitive jobs (as per current regs) Examines & certifies the workers in safety- sensitive jobs (as per current regs) Occupational Health Nurse Practitioner Occupational Health Nurse Practitioner Functions only within designated health services Functions only within designated health services Examines & certifies the workers in less safety- sensitive jobs (as per current regs) Examines & certifies the workers in less safety- sensitive jobs (as per current regs)

54 Team Approach – Nurse IS independent Occupational Medicine Practitioner Occupational Medicine Practitioner Examines & certifies the workers in safety- sensitive jobs (as per current regs) Examines & certifies the workers in safety- sensitive jobs (as per current regs) Examines & certifies the workers referred by the OHN, for opinion Examines & certifies the workers referred by the OHN, for opinion Occupational Health Nurse Practitioner Occupational Health Nurse Practitioner Examines & certifies the workers in all the jobs not specified to be certified by an OMP. Examines & certifies the workers in all the jobs not specified to be certified by an OMP. Somebody (?SASOM/SASOHN) Somebody (?SASOM/SASOHN) Formulates a minimum framework by which the fitness to work program should be implemented Formulates a minimum framework by which the fitness to work program should be implemented Sets the minimum standards of fitness Sets the minimum standards of fitness

55 Important thoughts Are we covering all relevant occupations? Are we covering all relevant occupations? Eg. Maintenance work at height, NOT on suspended platforms (riggers, crane maintenance work, etc.) Eg. Maintenance work at height, NOT on suspended platforms (riggers, crane maintenance work, etc.) Are we able to ensure that those declared Fit, but who have medical conditions controlled on medications, stay fit till the next examination? Are we able to ensure that those declared Fit, but who have medical conditions controlled on medications, stay fit till the next examination? Remember the other regulations (noise, chemicals (incl dust), lead, etc. Remember the other regulations (noise, chemicals (incl dust), lead, etc.

56 Fitness Certification: The Way Forward Work to be done by a number of role players... SASOM/SASOHN (and HPCSA/SANC) are willing to engage on: SASOM/SASOHN (and HPCSA/SANC) are willing to engage on: Role clarity of the doctors & nurses Role clarity of the doctors & nurses Minimum Standards of Fitness of the Jobs Minimum Standards of Fitness of the Jobs Practical application of the process (12-month Red Ticket) Practical application of the process (12-month Red Ticket)

57 Questions End

58 End Questions

59 Occupational Health Practitioner? Occupational Health & Safety Act: 'occupational health practitioner' means an occupational medicine practitioner or a person who holds a qualification in occupational health recognized as such by the South African Medical and Dental Council as referred to in the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974), or the South African Nursing Council as referred to in the Nursing Act, 1978 (Act 50 of 1978);

60 Occupational medicine practitioner? 'occupational medicine practitioner' means a medical practitioner as defined in the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974), who holds a qualification in occupational medicine or an equivalent qualification which qualification or equivalent is recognized as such by the South African Medical and Dental Council referred to in the said Act; 'occupational medicine practitioner' means a medical practitioner as defined in the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974), who holds a qualification in occupational medicine or an equivalent qualification which qualification or equivalent is recognized as such by the South African Medical and Dental Council referred to in the said Act;

61 How high is high? "scaffold" means any temporary elevated platform and supporting structure used for providing access to and supporting workmen or materials or both; "scaffold" means any temporary elevated platform and supporting structure used for providing access to and supporting workmen or materials or both; "suspended scaffold" means a working platform suspended from supports by means of one or more separate ropes from each support; "suspended scaffold" means a working platform suspended from supports by means of one or more separate ropes from each support; 3(1)(b)(iii) includes working at a height greater than 3 meters above ground or a landing. 3(1)(b)(iii) includes working at a height greater than 3 meters above ground or a landing.

62 The HCS Regulations 7(a)that an initial health evaluation is carried out by an occupational health practitioner immediately before or within 14 days after a person commences employment, where any exposure exists or may exist, which comprises- (i) an evaluation of the employee's medical and occupational history; (ii) a physical examination; and (iii) any other essential examination which in the opinion of the occupational health practitioner is desirable in order to enable the practitioner to do a proper evaluation;

63 The HCS Regulations 7(3)An employer shall not permit an employee who has been certified unfit for work by an occupational medicine practitioner to work in a workplace or part of a workplace in which he or she would be exposed: Provided that the relevant employee may be permitted to return to work which will expose him or her if he or she is certified fit for that work beforehand by an occupational medicine practitioner.

64 Medically capable of performing the tasks required To the required standard (quality & effectiveness) Without undue risk (self or others) Quality (eg. vision, dexterity) Effectiveness (eg. strength, endurance, flexibility) Can function in the working conditions associated with the job Can work in heat, dust, chemicals, etc. The Inherent requirements of the Job What does Fit to Work mean?

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67 COGP - Integration with Human Resource Policies

68 PSYCHOLOGICAL FITNESS? What is meant by...

69 Psychological Fitness? The intent of the legislator: The intent of the legislator: employees should be in a sound state of mind, appropriate to the level of responsibility of the tasks at hand employees should be in a sound state of mind, appropriate to the level of responsibility of the tasks at hand The intention was NOT: The intention was NOT: A detailed psychological assessment A detailed psychological assessment Certification by a qualified psychologist Certification by a qualified psychologist

70 The Situation – Psychological Fitness Wide variations in interpretation, with variations in application Wide variations in interpretation, with variations in application Some still using Psychologists or other tests such as the Dover Test Some still using Psychologists or other tests such as the Dover Test Some just using Nurses to provide ALL Fitness to Work certification Some just using Nurses to provide ALL Fitness to Work certification Some doing nothing Some doing nothing Even some DOL inspectors (and Risk Consultants!) are doing nothing! Even some DOL inspectors (and Risk Consultants!) are doing nothing! This statement will be removed from the new construction regulations

71 Comparison of OCD between Construction & other industries


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