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A ministry of health perspective mr peter ramkissoon


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A ministry of health perspective mr peter ramkissoon

  1. 1. 1The Legal Framework of the Occupational Diseases under the Occupational Safety and HealthAct Chapter 88:08Mr. Peter Ramkissoon, Acting State Counsel II, Ministry of Health1. Let me begin by saying that the Occupational Safety and Health Act has been includedin the 2006 Revised Edition of the Law of Trinidad and Tobago and therefore it is nolonger necessary to refer to the Act as “the Occupational Safety and Health Act 2004as amended”.2. I wanted to focus my talk on Part VIII of the Act which is titled “Notification andInvestigation of Accidents and Occupational Diseases” because this is where the term“occupational disease” is first dealt with substantively in the Act, apart from thedefinitions section which merely states that occupational disease means a diseaselisted in Schedule I of the Act.3. But I won’t confine myself to only that Part since I would also like to say something onPart XIV which deals with offences, penalties and legal proceedings under the Act andmention other sections of the Act or other Acts which relate in some way toOccupational Diseases and some cases.
  2. 2. 2Section 484. So turning to section 48(1) of the Act, we see that a medical practitioner is under aduty to notify the Chief Medical Officer (CMO) when he attends to a patient and formsthe opinion that the patient is suffering from an occupational disease contracted inany industrial establishment or in the course of his employment. Further, the noticemust be sent within forty-eight hours of having formed that opinion with specificinformation. I wanted to point out that unlike section 46(1) which also requiresimmediate notification in the case of an accident which causes death or critical injury,and notification which appears to be direct like the telephone or e-mail, thenotification required by this section does not need to be preceded by such immediateand direct means.5. Within that little section lies a great deal of information and detail and questionsconcerning the operation of the Act, which I will try to explain.Duty of Confidentiality
  3. 3. 36. Ordinarily, a doctor has a duty of confidentiality towards his patient. This means thathe has a legal obligation to not disclose or reveal voluntarily to a third party whateverknowledge he gains from treating a patient, whether that knowledge be gaineddirectly or indirectly. A breach of that confidence may result in the patient being ableclaim damages in Court for breach of the duty of confidence, which is a claim in tort,that is, a claim for a civil wrong.7. Further, in the instance of Trinidad and Tobago, the Medical Board Act Chapter 29:50which governs, among other things, the discipline of doctors for infamous ordisgraceful conduct, the very first specific act of infamous or disgraceful conductmentioned and found under Section 24(5)(a) is the willful betrayal of a professionalconfidence. And therefore a doctor may be subject to disciplinary proceedings if thedoctor releases information to a third party, like a CMO.8. Therefore one may be quick to assume that the release of a patient’s condition andinformation related to her employment is a breach of the duty of confidence.However the case of W v Egdell [1989] 1 All ER 1089 which confirmed that a doctorhad that duty but it was not absolute and the duty was subject to the requirements ofdisclosing under compulsion of law or disclosing in the public’s interest.
  4. 4. 49. Therefore it would appear that section 48(1)’s obligation imposed upon doctors willfall under the exception of compulsion of the law. It is to be noted that section 48(1)imposes a duty and not a mere discretion on the part of the doctor; this is evidencedby the use of the phrase he shall. If the word may was used, the medical practitionerwould have a discretion and not a mandatory obligation.10. This exception created by section 48(1) is like the exception that was noted in the caseof Hunter v Mann [1974] 2 All ER 414, where a doctor was found to be guilty ofrefusing to give information, to a police officer, which was in the doctor’s power togive and may have led to the identification of individual who the police officer wasenquiring about. The doctor refused to divulge the information because he had onlygained it through his practice and he felt bound to the duty of confidentiality.However the court found that there was an explicit statutory requirement for aperson to give information to an officer requesting it and failure to do so was acriminal offence.11. Likewise section 48(7) creates a criminal offence and possibly a safety and healthoffence (more on which later) whereby a medical practitioner is guilty if he fails tonotify the CMO within 48 hours if he ought reasonably to have formed the opinionthat the patient was suffering from an occupational disease.
  5. 5. 512. This raises the interesting question of when does a doctor form an opinion. It can’tsimply be when he attends to the patient and forms a suspicion and then decides thathe would need further tests to determine whether the complaints or conditionsobserved satisfies one of those diseases mentioned in Schedule 1. And what if heneeds to refer the patient to a specialist in order that his suspicions are confirmed?And this raises a further question, what is the obligation of the specialist whodetermines that the patient that was referred to him is suffering from an occupationaldisease? Is he also bound by Section 48(1). To my mind he is also bound since he is amedical practitioner and one who can form opinions and therefore he is also requiredto notify the CMO.13. But to my mind, the time that the Section 48(1)’s obligation begins to run for a doctorwho merely harbours a suspicion and takes weeks or months to come to a conclusiveopinion, must be after he receives and contemplates further information, eithersupplied by further questioning, examination or tests he conducts himself or anotherreferent practitioner, not at the point of suspicion.14. This is of course difficult to identify in practice, and the added obligation is not simplywhen he forms the opinion, but when he ought reasonably to have formed the
  6. 6. 6opinion. This then becomes a question of the test of when a medical practitionerought to reasonably have come to opinion. This sounds similarly like the test that isproposed in medical negligence cases where the erring doctors actions are measuredagainst the practice accepted at the time as proper by a responsible body of medicalopinion even though other doctors adopt a different practice, a test which is found inthe case of Bolam v Fiern Hospital Management Committee [1975] 2 All ER 118.15. At the very least, the prosecution in bringing a complaint against a doctor under thissection would be required to lead expert testimony from doctors as to when thisreasonable opinion should have been formed. And the delay with which this occursmust be tied to the type of practitioner which is being dealt with: in the case where apatient is suffering from a disease caused by aluminum, such as aluminum lung, whichis an Occupational respiratory disease under Schedule 1 and found at 2.1.8, a generalpractitioner cannot be held to the same standard as a pulmonologist.Industrial Establishment or in the course of his employment16. The Occupational Disease (OD) which the medical practitioner identifies must havebeen contracted in an industrial establishment. An industrial establishment is definedas a factory, shop, office, place of work or other premises. So the use of the
  7. 7. 7word industrial takes on a very broad meaning wholly unrelated to the sense thatindustrial usually connotes, which I think sounds like large scale manufacturing,production or construction. So Ministry buildings – like Ministry of Health, Ministry ofLabour, restaurants, and this hotel, will all qualify under the category of office or placeof work. An interesting example that would qualify as a place of work is on a ship orboat, so that crew members on the T&T Express would be able to say that theyoperate in or rather on an industrial establishment. However this submission is a bitacademic, since a ferry is a type of vessel and vessels are included in the definition ofpremises.17. I wanted to highlight that the person who contracts the occupational disease from theindustrial establishment need not be an employee of that establishment, merely thathe contracted the disease in the establishment. So a visitor would qualify. However, ifone reads the requirements of the notice that is to be sent it states that the noticemust contain the industrial establishment in which the patient is employed and waslast employed.18. In the case of a patient who contracted the OD from only visiting an establishment butwas not an employee that information would not be helpful for it would not revealthe causative establishment. To my mind the medical practitioner must include in the
  8. 8. 8notice the establishment which the patient visited and that the information asrequired by Section 48(1) is not exhaustive but the minimum that should be supplied,if one is to give effect to purpose of that section.19. And what about employees who do not work in a fixed place, but leave a centralheadquarters and work in different job sites, places everyday, often in privatepremises, like technicians or carpenters or community nurses or like the Ministry ofHealth’s Public Health Inspectors and like the OSH Agency’s Inspectors? And whatabout drivers and transporters, whose very employment depends on being in avehicle? Their vehicles would suffice as premises, under the definition of premisesunder the OSH Act. But I don’t think that the time they spend out of the vehicles,when they are offloading goods or making deliveries or when they of necessity haveto take their lunch will be considered as satisfying the criteria of an industrialestablishment. Are they not protected also?20. I think that the phrase in the course of his employment addresses just those workers Imentioned and just those situations I mentioned. In the course of one’s employmentis not defined under the Act, but has been defined by case law and academic texts.The case law defining the phrase has not been found with respect to this Act butrather with another Act that seeks the interest of the worker – The Workmen’s
  9. 9. 9Compensation Act Chapter 88:05 and with case law dealing with vicarious liability,that the liability of the employer with respect to the wrongful acts of his employee.21. The term “in the course of employment” according to Charlesworth on Negligence6thEdition at paragraph 89 is defined as:…an act is done in the course of employment not only when the servant is actually doingwork which he has been employed to do, but also when the act is an incident inperforming something he is employed to do when he is about business which concernsthe master and servant.22. L & Y.R v Highley 1917 AC 352 states that “arising out of the employment” would bedetermined if it:…was it part of the injured person’s employment to hazard, to suffer or to do that whichcaused his injury? If yea, the accident arose out of his employment. If nay, it did not.23. Winfield & Jolowicz on Tort finds that what is in or out of the course of employmentdepends upon a question of fact.
  10. 10. 1024. And there have been English cases sought to determine whether a worker was actingin the course of his employment. Such as R v National Insurance Commissioner ex p.Michael [1977] 1 WLR 109, where a policeman who played football for a match thatwas authorized, promoted and encouraged by the police authority was found to havenot been acting in the course of his employment when he was injured as a result ofplaying.25. I think this question of and the answer to in the course of ones employment relatedto the job specification or job description of an employee. This is how I deal with thisparticular criterion when I calculate Workmens Compensation claims. The substantiverequirements of ones work will determine when an individual was acting in thecourse of his employment when he contacted the OD or whether what he was doingwas not in his scope of duties and therefore the OD could not be said to have beencontracted in the course of his employment.26. The evidence of what the worker says is job and daily routine, what his supervisor saysis his job and daily routine and what his co-workers says is his job and daily routineshould also be considered.
  11. 11. 1126. Turning to subsection 3, the employer has a duty when he is advised by the employeethat he is suffering from an OD to give notice to the Chief Inspector in writing withinfour days of that advice. The employer also had this duty when he has been advisedby someone acting on behalf of the employee.27. These notices to the Chief Inspector trigger his obligation under subsection 4 toarrange for a medical inspector to investigate the case of the OD. It would appear thatthe broad words of investigate in the case of the OD entitles the Medical Inspector toinvoke his powers under sections 72 and 73, which he is entitled to exercise by virtueof section 82 which confers every power of an inspector on a medical inspector.28. The medical inspector must then submit his report on the case of the OD within twoweeks of his appointment by the Chief Inspector. Therefore at a maximum the ChiefInspector is first able to act upon an OD roughly a month and four days after theemployer is advised of the case of OD.29. The Chief Inspector is then mandated to conduct the necessary enquiries undersection 48(5). This term necessary enquiries suggest that the Chief Inspector may
  12. 12. 12instruct his Inspectors, including Medical Inspectors, to exercise their investigative,instructive and prosecutorial powers under Sections 72, 73 and 74.The District Medical Officer’s duties29. The District Medical Officer is also given certain duties under the OSH Act in respect ofoccupational diseases. Under section 49 he must arrange an autopsy to be conductedand forward the results to the CMO.30. Presumably the DMO, who may be the County Medical Officer of Health or a MedicalOfficer of Health, falling under the Ministry of Health or a Primary Care Physicians II,falling under the Regional Health Authorities, for that particular district, such asVictoria or St. George East or the other seven counties, would not be skilled orexperienced in subspecialty of pathology and therefore they are empowered toarrange for a pathologist to perform an autopsy on the body.31. This obligation is distinct from the one which the DMO has under the Coroners ActChapter 6:04, under section 9, which states that where the DMO has viewed the bodyof a deceased person and made any anatomical examination, he shall make a report
  13. 13. 13as to the cause of the death to the Coroner within the district the viewing took placeand also forward a copy of the report to the Superintendent of the Police withinwhose division the viewing took place.32. One can expect that the report he prepares pursuant to the Coroners Act will notsuffice for purposes of the report he sends to the CMO. The reason being that thereport prepared by the DMO pursuant to section 9 of the Coroners Act is based uponhis viewing and his anatomical examination and not an autopsy. An autopsy is aninvasive method of examination. Section 49 of the OSH Act, indicates that the resultof the autopsy are to be forwarded, the implication being that this must happen after.33. I think that this was put in place distinct from section 48, since 48 deals with a personwho is currently suffering as opposed to someone who has suffered from an OD. Acorpse also isnt a patient. Therefore the duty to send a notice within forty eight hoursto the CMO doesnt apply to the DMO in the case of a death.34. Also the criterion that the person must have contracted the OD from an industrialestablishment doesnt apply here for section 49 to operate. It is merely that thedeceased died from a Schedule 1 disease. The criterion that the dmo must arrange for
  14. 14. 14an autopsy to be conducted is in cases where death is caused by an accident anddeath is connected to an industrial establishment or in the course of employment.35. The CMO is then required to forward not the results of the autopsy, but rather astatement as to the cause of death to the Chief Inspector. But there is no prohibitionfor the CMO to forward the results also. This is distinct from the CMOs duty unders48(2) which appears to be that he acts as a conduit for passing information and doesnot give a statement or opinion on the matter.The Coroner’s duties36. The Coroner is also given duties and obligations under the Act. Section 50 mandatesthat a coroner is obligated to send the Chief Inspector a notice in writing of the timeand place of the inquest. This notice must be sent at least forty-eight hours before theholding of the inquest. It is assumed that the inquest referred to here in this section50 is identical to the inquest pursuant to Section 10A or 11 or 12 of the Coroners Act.37. Interestingly, under the Coroners Act section 10, the Coroner is obligated to carry outa preliminary investigation, after receiving the section 8 report from the DMO. This is
  15. 15. 15a preliminary investigation as to the cause and circumstances of the death. Howeverthis preliminary investigation is distinct from the inquest the Coroner holds pursuantto section 10A or 11or 12 of the Coroners Act. Therefore there is no obligation as yet,at the preliminary investigation stage for the Coroner to send the Chief Inspector anynotice of the proceedings.38. However subsection 10(2) and (3) of the Coroners Act indicates that the Coroner isobligated to deliver his findings in open Court if he determines that no further enquiryand therefore no inquest is necessary, and that the Clerk of the Peace shall give noticeto any party interested of the date, time and place of the delivery of the findings. Aninterested party in the case of an occupational disease would be the Chief Inspector oran Inspector and therefore they should be notified under section 10(3) of theCoroners Act.39. I suspect that if the Inspectorate isn’t notified that the OSH Agency may apply forjudicial review of the failure to notify them of the Coroner’s delivery of his findingsand seek an injunction of that delivery until an Inspector can attend or a quashingorder of any decision made by the Magistrate in the absence of the Inspector.
  16. 16. 1640. Here again phrasing implying immediacy of relaying the notice, as seen in section46(1), is missing from here and therefore the obligation to e-mail or telephone orattempt direct means is not mandated here.41. The implication of subsection 50(2) is that it is expected that the Chief Inspectorwould send one of his inspectors to the Coroner’s inquest and that the Cornoer mayadjourn the inquest for the purposes of notifying the Chief Inspector of the inquest.42. Under section 50(3) the Inspector; a relative; the employer; the occupier of theindustrial establishment from which the disease is alleged to have been contracted; aperson appointed by the occupier’s or employer; or a person appointed by the tradeunion or other association to which the deceased belonged to at the time of his death,may examine a witness either in person or through an attorney or an agent.43. According to section 22 of the Coroners Act the examination is taken down in writingin the form of a deposition which shall be admissible in evidence in any proceedings.Therefore this is important to the prosecution of health and safety offences andcriminal offences prosecuted under the OSH Act.
  17. 17. 1744. If no inspector was present at a Coroner’s Inquest, section 50(4) mandates theCoroner to send to the Chief Inspector a notice in writing of:i. The neglect which caused or contributed to the disease; orii. The defect in or about the industrial establishment appearing to the Coronerto require a remedy.45. The word “neglect” here refers to the behavior of the deceased, his co-workers and ofthe employer or occupier. This therefore may be broader than the duties listed in PartII of the OSH Act, although section 6(1) is quite comprehensive because of itsgenerality –So that neglect may arise where the employer failed to ensure, as far asreasonably practicable, the safety, health and welfare at work of his employee.46. Additionally, the defect in or about the industrial establishment appearing to theCoroner to require a remedy need not have contributed to the contraction of thedisease, but simply be an observation of the Coroner of the working practices thatexisted at the industrial establishment gained from the depositions of the witnessesto the inquest.
  18. 18. 1847. Section 51 gives the Minister, who is currently the Minister of Ministry of Labour andSmall and Micro Enterprise Development, the power to advise the President that acase of OD contracted or suspected to have been contracted in an industrialestablishment is a matter of public interest and the President may cause aCommission of Enquiry to be held whose remit will be the case of the industrialdisease and its causes and circumstances. This section uses the phrase industrialdisease but it should really occupational disease.48. I suspect that if the Minister fails to advise the President, his failure to do so wouldsubject him to judicial review, but it would have to shown that his failure to exercisehis discretion here was unreasonable or unlawful or motivated by an improper intentor purpose, for one to be successful at getting an order which mandated the Minsterto advise the President and that the case of the occupational disease attained a leveldeemed to be a matter of public interest.49. Under section 52(1) and (2) the Minister also has the discretion to direct the CMO toarrange for a medical inspector to investigate and submit a report on any to the CMOwho then forwards the report to the Minister. This investigation and report may be onany matter the Minster may direct and therefore includes the case of occupationaldiseases.
  19. 19. 19The purpose of these sections50. So one may be thinking to what end are these sections aimed. I think the benefit ofthese sections is that it creates the best conditions for the Chief Inspector to becomeaware of and be informed of occupational diseases that are existent in Trinidad andTobago and reduce the likelihood that occupational disease go undetected or if oncedetected, the likelihood that it will not be addressed or escape the public’s attention.51. Therefore I would want to turn to the methods by which he may address a case of anoccupational disease.52. Turning to Part XIV of the OSH Act, this part deals with offences, penalties and legalproceedings, section 88 states that where a person contravenes a provision of the Actor its regulation the person commits a safety and health offence. Where a person failsto comply with any duty, prohibition, restriction, instruction or directive issued underthe Act or its regulations he also commits a safety and health offence.
  20. 20. 2053. This safety and health offence is subject to the jurisdiction of the Industrial Court andsection 97A states that all safety and health offences shall be determined by theIndustrial Court.54. The Act also appears to maintain that offences may also be prosecuted in a summarilymanner in the Court of summary jurisdiction, that is the Magistrates’ Courts andtherefore no indictable offences exist under this act.55. This is supported by case of Inspector of Factories v OSHA Complaints No.1-4 NHInternational (Caribbean) Limited, OSHA Complaints Nos 5-10 Safeway access andSupport Systems Limited and OSHA Complaint No11 Turner Alpha Limited, which wasdetermined in the Industrial Court. This is one of the two cases I have found that dealswith prosecutions under the OSH Act in the Industrial Court.56. So at page 26 the judgment, the judges found that the scheme of the Act is such thatthe intention is that summary offences are to continue to be tried in the Magistrates’Court as they had been under the [Factory] Ordinance and the new class of offences
  21. 21. 21introduced under the Act, safety and health offence is to come under this Court’sjurisdiction.57. So in this case, which was based upon the collapse of scaffolding at the Customs andExcise Building, Government Campus Plaza, Richmond Street, Port of Spain thecomplaints were based upon failure to maintain the place of work, under theemployer’s control, in a condition that was safe and without risks to health, as far aspracticable. This is a breach which was contrary to Section 6(2)(e) of the OSH Act. Theother complaints are based upon breaches of sections 6(1); 6(2)(d); 7(1); 13(1)(a); and13(3).58. Therefore, it would appear that apart from specific breaches of reporting duties foundunder Part VIII, the offences which an employer may commit with respect to anoccupational disease are to be found under Part II, that is, the General Duties.59. But I would submit that those duties found under Part II, such as 6(1) or 7(1) or 13(3)are not criminal offences and cannot be prosecuted in the Magistrates’ Court and theyonly constitute safety and health offences.
  22. 22. 2260. I say this because if one looks at the Act and at those sections which create criminaloffences such as section 48(7), which I mentioned, or section 47(1) and (2) whichcriminalizes the interference of any wreckage at the scene of a critical injury, thewords “is liable, on summary conviction” is not to be found in those Part II duties. Thisphrasing usually indicates that the person is criminally liable and subject to theCriminal courts jurisdiction. Therefore the sections under Part II remain dutieswithout redress to the Magistrate’s Court but solely to the Industrial Court because ofthe wording.61. Take for example, where the vibration of a machine is consistently encountered byworkers at a factory but the employer fails to provide protective equipment to theworkers when they handle the equipment or post signs which warn the worker of thevibrations caused by the equipment and an employee develops an occupationaldisease as a result.62. This disease will amount to a disease that is caused by the physical agent of vibrationand therefore a Schedule I disease.
  23. 23. 2363. To my mind the employer has committed several safety and health offences. He hasfailed to make arrangements for ensuring the absence of risks to health in connectionwith the use and handling of equipment contrary to section 6(2)(b); he has failed toprovide information as is necessary to ensure the health at work of his employeecontrary to section 6(2)(d); and he has failed to maintain a place of work under theemployer’s control in a condition that is without risks to health as far as practicablecontrary to section 6(2)(e). I do think that the catch-all provision of section 6(1) willalso be applicable and the employer has failed to ensure the health at work of hisemployee.64. And similarly the worker would also have breached his responsibility found undersection 10(1)(a) by failing to take reasonable care for his own health while at work, bycontinuing to work in the absence of proper gear. So he also commits a safety andhealth offence.64. But I don’t think that the employer has acted contrary to section 6(2)(c) since thisspecifies that the protective clothing or devices provided are for preventing bodilyinjury not disease. Injury and disease appear to be distinct concepts under the Act andare not synonymous.
  24. 24. 2465. This power to institute prosecutions in the Industrial Court is not a bar to the otherpowers which the Inspector has, such as his powers under section 74(1), whichempowers him to serve a prohibition notice or an improvement notice where aperson is contravening the Act. As I said before to breach or fail to perform a duty is acontravention of the Act and therefore if conditions exist which would promote,encourage or allow the introduction or persistence of an occupational disease, theInspector may issue a prohibition and improvement notice which will remove theexisting danger.66. But what happens if the employer fails to take steps to comply with notices? This is, Ithink, a failure to follow a prohibition or a restriction or directive or an instruction andtherefore will constitute a safety and health offence, apart from the substantivefailure of the employer to ensure the other duties, which is why he was served in thefirst place with the orders.