Lessons from a draft medical code of conduct

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The safety industry in Australia may be seeking to become a recognised profession but, as with most business processes, continuous improvement is an important element of remaining current.

The Australian Medical Council has released a revised draft code of conduct with which several members of the Australian Medical Association (AMA) disagree.

According to an AMA media release,  Professor Paul Komesaroff, Director of Monash University’s Centre for Ethics in Medicine and Society, and Associate Professor Ian Kerridge, Director of Sydney University’s Centre for Values, Ethics and the Law in medicine, believe the draft Code

“was likely to be counterproductive for four main reasons:

  • it was very unclear how standards could be enforced; 
  • the Code was based on a single concept of ethics, lacking a sufficient appreciation of our multicultural diversity; 
  • it contributed to an insidious, creeping authoritarianism; and, lastly, 
  • the code would suggest that good practice involved following the same rules in all circumstances rather than responding to individual circumstances and needs.”

The professors said

“Codes of conduct can either expand the ability of individuals to make their own decisions and maximise their opportunities for ethical action, or they can claim authority beyond their capacity and encourage the belief that good practice simply involves following a formula and applying the rules.”

The medical code of conduct is only a draft so there should be robust debate.To do so publicly may appear unseemly to some but ultimately, when issues are resolved, the public (the clients) can bear witness to the exhaustive and open process organisations have used to establish professional standards.  

The lesson for embryonic professions like safety is to follow the advice I provdie consultants of any profession – look outside your comfort zone to better understand what you do.

The quote above suggests that a registered profession does not need to be regimented and controlling.  To be described as professional is a compliment, but the risk is that “professional” can come to mean blinkered and, ultimately, fearful.  A profession risks becoming infected by “an insidious, creeping authoritarianism”.

Many in the safety profession are promoting “leadership”, “innovation”, “resilience”.  Perhaps we should be promoting an inclusive terminology that has an established and, usually, reputable history, like medicine.  Safety “profession” can include all of the modern business jingo in a proven framework rather than confusing ourselves, our clients and our regulators, with “Newspeak“.

Now that would be doubleplusgood.

Kevin Jones

Initial union comments on OHS Law Review Panel report

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The Australian Council of Trade Unions’ submission to the national review of model OHS law was entitled “The Highest Standards For Harmonised OHS Law”.  This is intriguing as the union movement is not happy with the concession that the final report of the review panel made concerning the right of a union to instigate and manage OHS prosecutions.

Geoff Fary
Geoff Fary

Geoff Fary, Assistant Secretary of the ACTU, told SafetyAtWorkBlog on 17 February 2009 said that the ACTU is still assessing the recommendations of the final review panel report and will probably release a more detailed response in early March 2009 but that the OHS harmonization process “should not result in a reduction in protection of workers’ entitlements or the rights of any group of workers.”

The ACTU has concerns

“if the result of this process is that the people who have benefited from that [right] no longer have it available.  It therefore follows that one of the key things we are concerned about in the recommendation of the second report is that if it was adopted it would no longer be open for unions to initiate prosecutions when regulators fail to do so.”

Fary said that prosecutorial action by unions in New South Wales have always been successful and have lead to legislative change. 

“Undoubtedly, in our view, the ability for unions to prosecute has been in the best interests of health and safety outcomes for workers.”

To some extent workers and the media are getting confused by the parallel reform processes of industrial relations and workplace safety.  There is the potential for one stream to retard the process of the other.  Geoff Fary said that this is unlikely as he thinks that the IR reforms could be “up and running before all of the OHS changes”.

Fary expressed the ACTU’s support for the declarations and actions of the International Labour Organisation but it is noted that media reports on 18 February illustrate that not all the union movement supports the ACTU President, Sharan Burrows’ perspective that Australia’s new industrial relations legislation meets international obligations “on balance”.

Kevin Jones

Edited audio of the interview with Geoff Fary can be accessed HERE

Previous SafetyAtWorkBlog postings concern Geoff are available

Should the OHS Profession be Regulated?

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There is a strong campaign to improve the level of professionalism in occupational health and safety in Australia.  Several safety-related bodies have achieved this already by being far-sighted and progressive, others have not.  Concerns over the inconsistency of health and safety advice spurred WorkSafe Victoria to coordinate the establishment of a Health & Safety Professionals Alliance (HaSPA).

However it is possible that even this very recent initiative is becoming outdated.

Lessons from Accountants

One of the models that HaSPA is following is that of the accounting profession.  Certification of this profession has existed for decades and has been supported by government as the preferred avenue for tax preparation and other similar financial measures.  The prominence and solidity of the qualification and the diligence of enforcement by the professional bodies is impressive but part of that sector will soon become regulated by legislation.

Legislation being considered by the Australian Parliament will, according to  media reports,

  • establish minimum standards for those professionals completing taxation returns;
  • maintain a registry of those suitably qualified;
  • improve the quality of advice of those not already in an accountancy professional body;
  • establish a national tax practitioner board;
  • introduce a code of professional conduct; and
  • develop civil penalties for certain types of misconduct by tax practitioners.

HaSPA has many hurdles to meet through its member bodies but there are several external to the process that should be considered.

Where’s the evidence?

Safety professionals are constantly advocating for evidence-based decisions.  Sometimes this comes from researchers who also have one eye on research grants but given that decisions should be based on evidence, is there evidence that safety professionals have provided poor advice in the past?  If so, where is it?

Buyer Beware

Also, is this so important?  OHS legisaltion throughout Australia stipulates that the principal responsibility for managing safety in the workplace resides wiht the employer.  The employer has an obligation to maintain a suitable state of knowledge of the hazards in their workplace and can seek advice from external advisers, should they choose.  Why should caveat emptor not apply in the case of safety consultants?

The debate on OHS professionalism can be seen as a tussle between caveat emptor and caveat venditor with the argument tilting toward emptor because of the employer obligations in OHS law.

The move to somehow regulate the safety profession is an acknowledgement that the profession, as a whole, has done a poor job of regulating itself and establishing its credentials in the marketplace.  

The business community is struggling with the global financial crisis showing that a free market leads to greed and chaos at the same time it is ideologically opposed to regulatory interference.  The government’s OHS legislation is being pushed as an update, not new, in order to minimise the opposition from business.  The business cost benefits are also being heavily promoted.  

Could an argument be made that workplace safety could be improved more quickly and more effectively through a national registration of the safety profession?  Accountancy is providing a model.  Private certification is available in North America.  Singapore already registers its safety professionals.  

Either way, let’s see some evidence.

Kevin Jones

Response to National OHS Law Review

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In the Australian Financial Review on 17 February 2009 (page 8 but not accessible online) Steven Scott reports that the Western Australian Treasurer Troy Buswell is in a stoush with the Federal government over OHS laws.  They are not.  Buswell is quoted as saying

“My view is that it’s much more appropriate to make sure you get it right…  We will not be supporting the establishment of Safe Work Australia until we are in a position to commit ourselves to the full harmonisation process.”

Buswell wants more time and more information.  He is also concerned about the (related) industrial relations changes.  Only last week, Buswell was at a Senate Committee supporting West Australian businesses.  The Treasurer’s stance is at least consistent and prepared for flexibility.

Michael Tooma, a labour lawyer with Deacons in Sydney, is reported as saying  that 

“These right of entry provisions could be used for ulterior purposes, either for a recruitment drive or as a way of causing industrial agitation….. It gives unions the right to use OHS as a Trojan Horse for the purpose of entry onto sites.”

In his initial analysis of the final report Tooma wrote

“The Panel took the view that union right of entry contributes in a positive manner to OHS compliance at a workplace level.  It recommended that the model Act provide right of entry for OHS purposes to union officials and/or union employees formally authorised for that purpose under the model Act.”

and that 

“These recommendations have the potential to industrialise the safety agenda.”

The review panel is acting on the fact that workplace safety is already industrialised and that those who continue to split to two areas are denying reality.  OHS cannot be managed successfully without also working with the human capital and industrial relations context.

The right-of-entry provisions in any legislation is a hotly contested ideological battle and there is plenty of evidence through the many submissions to many OHS and IR reviews of this.

Right-of-entry is not a threat of punishment and is readily avoided through workplaces having active and functional methods of consultation and safety management.

Similarly, concerns are being raised over the introduction of Provisional Improvement Notices (PINs) in some jurisdiction.  PINs are an acknowlegement of a breakdown in communication and a dysfunctional safety management system in the workplace.  In some workplaces PINs are never applied because everyone talks about safety in an open and accountable fashion.

Many of the concerns being raised over this final review panel report can be addressed by safety professionals and advocates publishing examples of how alarming legislative provisions have proven to be non-starters.  The power may be on the legal register but are infrequently applied.

When the new right-of-entry provisions were being introduced in Victoria, many lawyers and employer representatives said the world would collapse.  It hasn’t and the sensible control and oversight of the process is now recommended across Australia.

It is perhaps time for WorkSafe Victoria to re-emphasise the success of the right-of-entry management process it has operated under for several years.  John Merritt, CEO of WorkSafe Victoria has spoken very positively of the process.  An information sheet on the issues for employers is also available.

Kevin Jones

Draft guidance on musculoskeletal injuries in mining

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Any inquiry into musculoskeletal disorders (MSD) in any industry is of great interest to OHS professionals as MSD are the bane of the profession.

The New South Wales Dept of Primary Industries (DPI) is requesting public comment on a new MSD guidance for the mining and extractive industries.  Below is some text from the media release

Industry comment is being sought by the Musculoskeletal Disorders (MSD) Working Party on the guidance document The Management of Musculoskeletal Disorders in the Mining and Extractives Industry.

The benefits of the guide are that it;
• Facilitates sites taking planned preventative measures;
• Uses the capacities that already exist and;
• Provides effective tools for sites to use.

Comments are welcome on the guidance through the DPI website by close of business 27 March 2009.

Kevin Jones