It can happen so easily. A staff member in a medical practice is asked to archive some old files in an awkward back cupboard. As some of the files start to fall, she reaches out to stop them and hurts her back.
Health and safety regulations will then come into play — but these regulations have recently changed.
New work health and safety (WHS) laws were introduced in Australia at the beginning of this year, replacing various state-based schemes with a nationally consistent framework operating under the new federal Work Health and Safety Act 2010.
Most states have introduced transitional arrangements to give businesses time to move from the old state-based occupational health and safety acts to the new national WHS arrangements.
Dr Graeme Edwards, a senior occupational physician and specialist in occupational and environmental medicine, says under the new national laws, being a medico–employer/manager is more complex because of changes to the wording of who is responsible for workplace health and safety.
The new rules state that persons “conducting a business or undertaking” have a primary duty of care, “so far as is reasonably practicable”, to ensure the health and safety of workers and others who may be affected by the carrying out of work.
Dr Edwards, who is the regional manager of Queensland specialist services workplace health with Medibank Health Solutions, says the critical issue for doctors is in the definition of an “officer, or person conducting a business or undertaking”, and how it applies to their business structure and operations.
“It is likely that many more doctors will be caught by the definitions than previously but it really depends on their business structure”, Dr Edwards says.
The new national legislation states that officers must exercise due diligence to ensure that the person conducting a business complies with their obligations.
This includes taking reasonable steps to keep up to date with WHS matters, being aware of the hazards and risks of the workplace, and ensuring that the person conducting the business eliminates or minimises risks.
“[There is now a] statutory imposed obligation to undertake ‘due diligence’ concerning the health and safety of the workplace. While this has always been generally implied, as it was not explicit it did not get the attention it deserves”, Dr Edwards says.
“For the first time the obligations have been made explicit, and with explicit penalties. As is always the case, ignorance of the law is not a defence.”
A doctor in a partnership found to have committed an offence of reckless conduct under the due diligence provisions faces fines of up to $600 000 or 5 years’ imprisonment, or both.
When assessing the risks or hazards in a practice, ideally the best person is the individual with the legal responsibility for the practice, which is typically the practice owner, says Dr Edwards.
“It is appropriate to delegate the task to an appropriately skilled individual but under the legislation you cannot abdicate responsibility and there are personal liabilities if you are found derelict in meeting your duties, especially if you are deemed an ‘officer’ within the meaning of the Act.
“Having no time is not a defence”, Dr Edwards says.
As a rough guide, a formal risk assessment should be performed at least every 5 years, but to truly meet the imposed obligations, it is a continual process of monitoring, reflecting and acting on the issues relevant to your specific medical practice, he says.
“If there is a change in practice procedures or processes, or whenever an incident occurs, this should trigger a risk review.”
Special qualifications are not necessary to undertake a review but training and insight are vital. Various workplace health and safety bodies across the country have developed tools to assist businesses to conduct risk assessments.
“However, you need to know where to find this information and how to adapt it to make it relevant to your particular workplace. Insight and understanding are therefore vital. Even if you have done your best, if your best is deficient you could still be held liable.”
Some professional organisations run programs to provide guidance on WHS issues. Occupational physicians are also specialists in this area.
Dr Edwards says Medibank Health Solutions is now one of the largest employers of occupational physicians in Australia, and can provide professional advice to businesses.
“The onus of responsibility is clear — medico–employers shouldn’t keep their heads in the sand when it comes to their health and safety obligations in this new world order”, he says.
“As many medicos are effectively small businesses, they, like all small businesses, don’t escape the impost of these legislated responsibilities.”
Managing workplace injuries
Dr Edwards says the employer now plays a critical role in helping an injured worker return to work. The two primary determinants in successful return-to-work programs are the proactivity of the employer, and the proactivity of the initial treating practitioner.
“The insights and understanding of a medico–employer, who may have been the first attending medico, means you can deal more effectively with the rehabilitation needs of workers in straightforward cases”, he says.
On its website, Safe Work Australia says the most common causes of compensated injury and disease in the health and community services industry in 2009–10 were muscular stress (due to manual handling or repetitive movement), which accounted for 52% of claims; falls, trips and slips, which accounted for 18% of claims; and being hit by moving objects, which accounted for 11% of claims.
Dr Edwards says falls, trips and slips, which are more common in private practice, do not relate just to staff. These are also the main hazards for patients. “This is a common concern for all business premises when individuals from outside the organisation are not familiar with the building”, he says.
Although an injury to a patient not related to medical treatment would be covered by public liability insurance, it can also involve WHS legislation.
MJA Careers put a series of questions to Safe Work Australia about the new national regulations and the effect on medical practices for this article, but it did not respond.
Developing a “no blame” culture
WORK health and safety (WHS) should be seen as an extension of practice standards, according to Dr Mike Civil, the chair of the Royal Australian college of General Practitioners’ National Standing Committee — Standards for general practices.
Dr Civil, who is a general practitioner in Perth, says WHS issues are part of clinical governance, which dictates the systematic approach all practices need to take to maintain and improve the quality of patient care. By having good systems in place, issues related to WHS are also recognised.
He strongly supports a “no blame” mentality in the practice to ensure that staff feel free to report any issues and to provide feedback on ways to develop a safer work environment.
“What we don’t want is a work environment where someone could have an accident and where we don’t have adequate [workers’ compensation] cover for that”, Dr Civil says.
He says his own practice recently underwent a major renovation where important issues related to safety switches were found not to have been in place before the work was done.
He advises doctors to maintain contact with their professional organisations, local chambers of commerce and industry, small business groups and government bodies to keep up to date with WHS issues.
Further information about the new regulations
- Safe Work Australia: - http://safeworkaustralia.gov.au/LEGISLATION/MODELWHSACT/Pages/ModelWHSAct.aspx
- State government workers’ compensation departments, including the Workcover Authority of New South Wales: http://smallbusiness.workcover.nsw.gov.au/New-Legislation/Pages/default.aspx and Workplace Health and Safety Queensland: http://www.deir.qld.gov.au/workplace/law/whslaws/legislation/index.htm
- Australian Industry Group: http://www.aigroup.com.au/ohs/nationalohsreview/