The legal
requirements of
health data
Legal requirements of health data
Legal requirements in regards to health data can be
said to be covered by three areas of health
management:
1. Organisational management of risk
2. Effects of work on health
3. Effects of health on work
ensure that preventive and protective measures are
in place and effective. It may be appropriate to
record and analyse the results of monitoring activity,
to identify any underlying themes or trends which
may not be apparent from looking at events in
isolation. Controlling absence numbers alone does
not satisfy this requirement.
1. Organisational management of risks
Regulation 5 of the Management of Health and
Safety at Work Regulations as well as good practice
guidance for Safety Management Systems state
that an organisation should consider the roles of
Planning, Organisation, Control, Monitoring and
Review when managing
health and safety risks.
For each of these roles
employers
should
create
arrangements
appropriate
to
the
nature of their activities.
Effective management
of health will depend,
amongst other things,
on a suitable and sufficient risk assessment being
carried out and the findings being used effectively.
Therefore the development and management of
health risk assessments, and resultant health
surveillance, need to be as in depth as the health
hazards require. Ignorance of the level of
management required is not a defence in law.
Monitoring
Employers should assess how effectively they are
controlling risks. Active monitoring reveals how
effectively the health controls and activities are
functioning; organisations should have a plan and
make adequate routine inspections and checks to
Review
Review involves establishing priorities for necessary
remedial action that were discovered as a result of
monitoring to ensure that suitable action is taken.
As the nature of work changes, the appreciation of
hazards and risks may develop. The risk
assessment may no longer be valid because, for
example, the results of health surveillance, or a
confirmed case of occupationally induced disease.
Such events should be a trigger for reviewing the
original risk assessment.
In addition, a further legal requirement is for all
occupational health related incidents that are
reportable under RIDDOR to be reported through
SMIS to the ORR.
2.
Effect of work on health
For the effect of work on health duty-holders should
meet health-related regulatory requirements such
as those specified within the following documents:
Duties with interpretation due to risk assessment
- Control of Substances Hazardous to Health
Regulations (COSHH) 2002
- Control of Vibration at Work Regulations
2005
- Control of Noise at Work Regulations 2005
Specific duties under health
- Control of Asbestos Regulations 2006.
- Control of Lead at Work Regulations 2002
Legal requirements of health data
The risk assessment will identify circumstances in
which health surveillance is required by specific
health and safety regulations eg COSHH. Health
surveillance should also be introduced where the
assessment shows the following criteria to apply:
a) there is an identifiable disease or adverse
health condition related to the work
concerned; and
b) valid techniques are available to detect
indications of the disease or condition; and
c) there is a reasonable likelihood that the
disease or condition may occur under the
particular conditions of work; and
d) surveillance is likely to further the protection
of the health and safety of the employees to
be covered.
The appropriate level,
frequency
and
procedure of health
surveillance should be
determined
by
a
competent
person
acting within the limits
of their training and
experience. This could
be determined on the
basis of suitable general guidance (eg regarding
skin inspection for dermal effects) but in certain
circumstances this may require the assistance of a
qualified medical practitioner, occupational health
hygienist or ergonomist.
Health surveillance may also involve one or more
procedures depending on suitability to the
circumstances. Such procedures can include:
a) inspection of readily detectable conditions
by a responsible person acting within the
limits of their training and experience;
b) enquiries about symptoms, inspection and
examination by a qualified person such as
an Occupational Health Nurse;
c) medical surveillance, which may include
clinical examination and measurement of
physiological or psychological effects by an
appropriately qualified person;
d) biological
effect
monitoring,
ie
the
measurement and assessment of early
biological effects such as diminished lung
function in exposed workers; and
e) biological monitoring, ie the measurement
and assessment of workplace agents or
their metabolites either in tissues, secreta,
excreta, expired air or any combination of
these in exposed workers.
The primary benefit, and therefore objective of
health surveillance should be to detect adverse
health effects at an early stage, thereby enabling
further harm to be prevented. The results of health
surveillance can provide a means of:
a) checking the effectiveness of control
measures;
b) providing feedback on the accuracy of the
risk assessment; and
c) identifying and protecting individuals at
increased risk because of the nature of their
work.
The HSE publishes HSG61 Health surveillance at
work, which is designed to give guidance on how
employers can fulfill their legal duty to provide
health surveillance. It is aimed at those managing
health risks at work
3.
The effect of health on work
The primary issue to be considered is whether
people can carry out their tasks in the environment
without incurring foreseeable risk to themselves or
to others.
Fitness for work is featured within The Railways and
Other Guided Transport Systems (Safety)
Regulations 2006 (ROGS) (as amended).
Specifically:
Regulation 24: Duty to manage competence
and fitness of safety critical workers
Regulation 25: Duty to manage fatigue of
safety critical workers
Regulation 26: Co-operation requirements
Manage fitness of safety critical workers
Controllers of safety-critical work must:
make sure an objective, trained assessor
assesses safety-critical workers as being
trained and fit to carry out the work;
keep and update a written record of the
worker’s training and fitness, including the
conditions against which they were
assessed;
Legal requirements of health data
-
-
make their written records available for us to
inspect, or for other affected controllers or
operators to inspect after making a
reasonable request to do so;
put in place a system to monitor the training
and fitness of safety-critical workers; and
review and reassess safety-critical workers’
competence or fitness if they have reason to
doubt it or if the task changes significantly.
or fatigue may be included in general wellbeing,
especially if it does not originate from work. In
regards to health data collection Wellbeing should
not be seen as a legal requirement. However, data
collection in this area could be of business
advantage.
The fitness of safety critical workers for work is
framed by Railway Group Standards and managed
through routine health assessments undertaken by
occupational health providers.
Fatigue of safety critical workers
Fatigue (extreme tiredness) has been identified as
one of the main causes of incidents on the railways.
It can lead to workers becoming less alert or
motivated, or making more mistakes or poor
decisions. Controllers must make sure that workers
do not carry out safety-critical tasks if they are
affected by fatigue (or would be affected if they
carried out the task) in a way that also affects health
and safety. An effective process for managing the
risks caused by fatigue in safety-critical workers
should include:
- Identification of the workers affected
- Recording the arrangements
- Monitoring of workers
- Review of the arrangements
Co-operation requirements for safety-critical work
The co-operation requirement in ROGS builds on
the existing requirement (in the Management of
Health & Safety at Work Regulations 1999) for
employers and self-employed people who share a
workplace to co-ordinate their safety measures.
This co-operation could include things like sharing
information, which may include data about health.
Health data collection – the current picture
In regards to each of the areas specified it can be
said that:

Monitoring

Review

Health Surveillance

Management of safety critical workers
Are all undertaken by the organisation to meet legal
requirements. The only current form of cross
industry health data collection is RIDDOR reporting,
which is regarded as inadequate.
General well-being
The legal requirements to manage General
wellbeing greatly depend upon how it is defined. For
issues such as obesity, smoking, and rehabilitation
there are no direct legal requirements for the
employer to manage. However, the commercial
benefits may be considerable. On occasions stress
Legal requirements of health data