Circulars
  • Date: 6/5/2014
  • Series: RSR
  • Number: RSR 2 - 2014
  • Case number: 2012/22925 alg

Medical examination of employees on Norwegian ships and mobile offshore units

New Regulations on the medical examination of employees on Norwegian ships and mobile offshore units

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Introduction

The Norwegian Maritime Authority has laid down new Regulations on the medical examination of employees on Norwegian ships and mobile offshore units. The Regulations implement the requirements for medical certificate and medical examination in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), including the amendments from 2010, and the international convention concerning seafarers' working and living conditions (MLC, 2006).

The Regulations enter into force on 1 July 2014 and replace the Regulations of 19 October 2001 No. 1309 concerning the medical examination of employees on ships, which are repealed as from the same date.

The Regulations were circulated for comments in the period from 13 September to 25 October 2012. The Norwegian Maritime Authority received 28 consultative statements, whereof 13 did not include comments to the proposal. Comments to the other consultative statements can be found in this circular.

Background

The IMO and the ILO have laid down common guidelines on the medical examination of seafarers and the issue of medical certificates (henceforth: "Guidelines"). We have chosen to follow these Guidelines as far as possible.

In addition to implementing the MLC, 2006 and amendments to the STCW Convention and Code, the new Regulations include certain other amendments. The most central amendment is that all provisions for and references to rules of procedure for the seafarer's doctors have been taken out. The Regulations set forth that the seafarer's doctor makes decisions on behalf of the Norwegian Maritime Authority (NMA) and that the seafarer's doctor must there follow the rules of procedure laid down in the Public Administration Act. The seafarer's doctor must also use an electronic administrative procedure system. Now that this system is up and running, the Regulations can be laid down.

Comments to the individual provisions

Purpose and scope, Sections 1 and 2

The first amendment is evident from the name of the Regulations, where it is specified that the Regulations also apply to employees on mobile offshore units. This is also stated specifically in section 2 which concerns the scope of the Regulations. Section 1 has furthermore been amended by adding that the employee shall not suffer from a medical condition likely to be aggravated by service at sea. The reason for this amendment is that this is the phrasing chosen in both the MLC, 2006 and the STCW.

To Section 4 on medical certificate

As a result of statements from the internal consultation, section 21 from the previous Regulations, regarding EEA medical certificates, was moved to section 4. A provision has also been added, that lays down that medical certificates from other flag States, which are approved by the NMA, may be used on Norwegian ships.

Section 4 fourth paragraph provides that personnel on mobile offshore units serving in a capacity for which a certificate of competency is not required pursuant to the Regulations of 22 December 2011 No. 1523 concerning qualifications and certificates for seafarers, may have a petroleum medical certificate in lieu of a medical certificate for seafarers.

A new condition for commencement of service without valid medical certificate when it is not possible to obtain a new medical certificate without delaying the vessel, has furthermore been added to section 4. These employees must now hold a medical certificate which expired not more than a month earlier. This is the NMA's specification of MLC Standard A1.2 paragraph 8 (b) stating that the employee must possess an expired medical certificate of "recent date" in order to commence service on board without a valid medical certificate. This is the same solution chosen by other flag States which are comparable to Norway, such as Great Britain.

The Norwegian Fishing Vessel Owners Association has made a consultative statement that "recent date" should be interpreted as two months. We feel that two months would be too long, and therefore maintain the deadline of one month.

According to the previous Regulations, persons in a position for which a certificate of competency is required or who shall form part of the navigational or engineering watch could not be granted the exemption mentioned in the previous paragraph. Neither the MLC, 2006 nor the STCW has a similar restriction on who may be granted the exemption mentioned in the previous paragraph. We have therefore not continued the restriction, and now all employees on board can use the exemption.

In order to gather as many as possible of the concrete requirements for the medical certificate, we have moved the requirement for the medical certificate to be kept on board by the master from section 6 to section 4.

To Section 5 on the validity of the medical certificate

This provision includes a new rule for the cases where the validity of the medical certificate expires while the ship is at sea. The medical certificate shall now nonetheless be deemed invalid if the period of validity expired more than three months earlier.

The restriction from the previous Regulations, concerning that employees over 50 years of age on ships and employees under 21 years of age on fishing vessels should have a medical certificate valid for one year, has been removed, since this restriction is not found in the MLC, 2006 or the STCW. The Norwegian Fishing Vessel Owners Association has made a consultative statement that there needs to be a opening in section 5 for making short stops in ports without having to renew the medical certificate. Such a possibility will conflict with the STCW Convention regulation 1.2, cf. the STCW Code A1.2, and the suggestion has therefore not been taken into account.

The last part of section 5 of the previous Regulations, concerning the employer's and company's duty to renew the medical certificate in the event of incapacity to work or upon suspicion that the employee no longer satisfies the requirements, has been moved to section 6 "Demand for new medical certificate".

To Section 6 Demand for new medical certificate

The title of section 6 has been changed from "Duties" to "Demand for new medical certificate" as this gives a more precise indication of what the provision actually regulates.

Section 6 provides that the company or the master shall demand a new medical certificate if it is likely that the employee no longer satisfies the regulatory health requirements. The demand for new medical certificate shall be presented in writing, and the provision gives some examples of what the reasons behind such a demand could be. Up until now, there has been an absolute limit of 8 weeks of continuous incapacity to work before a new medical certificate must be presented. This rule has not been continued since it is neither reflected in the MLC, 2006 nor in the STCW. The requirement currently laid down corresponds better with the Guidelines, which in part 2 section VI state that where illnesses and injuries may impair the ability of a seafarer to perform routine and emergency duties, their current fitness may need to be reassessed. As support for the master and the company, section 6, in accordance with the Guidelines, lists particular cases where this could be applicable. A new medical certificate is not specifically required in these cases, but it needs to be considered whether it is necessary.

The wording of section 6 has been slightly changed following consultative statements from the Norwegian Centre for Maritime Medicine and from within the NMA.

To proposed Section 7 on supervision

The NMA or others authorised by the NMA could in accordance with section 7 of the regulatory text circulated for comments supervise the seafarer's doctors. This provision has been removed from the final Regulations, since the requirement to subject to supervision will be a part of the approval arrangement for the seafarer's doctors. This made it unnecessary to include in these Regulations. Since this provision is deleted, the remaining provisions of the Regulations will be renumbered, so that section 8 becomes section 7, etc.

To Section 7 Requirements for approval as seafarer's doctor

In section 7 first paragraph (a) there is now a requirement that medical practitioners wishing to be approved as seafarer's doctors must complete a course in maritime medicine approved by the NMA. The requirement shall ensure that the seafarer's doctors satisfy the requirements recommended in the Guidelines that the medical practitioners should have knowledge of seafarers' working and living conditions and how these are related to seafarers' health problems and their ability to work efficiently. It is further recommended that the medical practitioners know of and understand the challenges related to the fact that they as seafarer's doctors represent the authorities. The NMA feels that this is best ensured through a mandatory course. Medical practitioners with valid approval in accordance with the previous Regulations, must within five years have completed the course in order to keep their approval, cf. section 19.

It may happen that seafarer's doctors issue medical certificates after their approval has expired. This is most often due to the fact that they forget to apply for renewal. This will of course mean that the doctor issues medical certificates which are not valid, since the doctor no longer has the authority to issue them. The seafarer's doctors therefore need to have their approval certificate posted in their office, so that it is easy for the person being examined to see when the doctor's approval expires.

As recommended in the Guidelines part 2 section VIII the NMA will, in addition to maintaining the list of approved seafarer's doctors, also keep a list of medical practitioners whose approval has been withdrawn during the previous 24 months.

The STCW Code section A-I/8 and section VIII in the Guidelines provide that the NMA shall have a quality system in place to ensure that the seafarer's doctors satisfy the requirements laid down by the Regulations and that the seafarer's doctor also has a quality system in place ensuring that he or she performs his or her duties in accordance with the requirements of the Regulations. The requirement for the seafarer's doctor to have a quality system in place is provided by section 7 first paragraph (h) of the Regulations. The requirement is that the seafarer's doctor has a quality system in accordance with an internationally recognised standard.

The seafarer's doctor is not required to have a certified quality system, but the doctor must in connection with the application be able to document that such a quality system has been implemented. In the regulatory text originally circulated for comments, it was suggested to use either ISO 9001 or IMHA Quality as standards which the NMA could approve. After the consultative period the Regulations have been changed so that the quality system shall not be approved by the NMA. It is instead up to each individual doctor to find the standard best suited for his or her practice. This could be ISO 9001, IMHA Quality or another standard. The condition for approval of the application is that the system is of a satisfactory quality and that it is based on an internationally recognised standard. When the medical practitioner applies for approval as seafarer's doctor, it is the doctor's responsibility to attach sufficient information documenting that the system is good enough and that it has been implemented. More on this under the section "Economic and administrative consequences".

When we now include a requirement for a quality system and for courses for the seafarer's doctors, as well as introduce electronic reporting, the NMA will get better control and overview of the seafarer's doctors' work. On this background, the approval period has been extended to up to five years, cf. section 7.

To Section 9 The seafarer's doctor's competence and administrative procedure

The first paragraph from the proposed section 8 has been moved to section 9 in the adopted Regulations. The content has also been restructured so that the different types of decisions that the doctor can make, are indicated in section 9 first paragraph (a) to (c).

The content in the requirements for the seafarer's doctor's administrative procedure has been continued, but in such a way that the rules now follow the Public Administration Act instead of the Health Regulations. The reason for there being separate rules for administrative procedures in the previous Regulations, was to make the rules more accessible to seafarer's doctors and seafarers. Our experience is that this solution has not contributed to more clarity, neither for doctors nor seafarers. We hope that it will now be easier for both employees/seafarers and doctors to get to the bottom of the applicable rules of procedure.

Some minor linguistic changes have been made in section 9 based on consultative statements from the Norwegian Centre for Maritime Medicine.

Section 9 specifies that doctors shall base their decision on the appendix in connection with medical examinations. The number of existing illnesses and disorders is too extensive to be listed in the Regulations, and for that reason it is established that doctors need to use analogy and their medical judgement when encountering conditions not specifically mentioned in the Regulations. The key principle is to assess whether the purpose of section 1 is achieved and whether the employee satisfies the minimum health requirements laid down in the appendix to the Regulations.

To Section 12 Issue of permanent declaration of unfitness, temporary declaration of unfitness and provisional declaration of unfitness

With regard to the issue of declarations of unfitness laid down in section 13 of the previous Regulations and the issue of provisional declarations of unfitness of section 14 of the previous Regulations, these two provisions have been combined in section 12 of the new Regulations. The new system in section 12 is taken from the Guidelines and provides for three different declarations of unfitness: one permanent, one temporary and one provisional.

A permanent declaration of unfitness is issued to employees who at the time of the medical examination do not satisfy the requirements for a medical certificate, and whose health is unlikely to improve within the next two years.

A temporary declaration of unfitness will be issued to employees who at the time of the medical examination do not satisfy the requirements of the Regulations, but whose health is likely to improve within the next two years so that they consequently satisfy the requirements of the Regulations.

A provisional declaration of unfitness is issued to employees when the seafarer's doctor, outside of an examination situation, receives information that the employee no longer satisfies the requirements of the Regulations. The doctor must then notify the company, master and employer of the decision, and must invite the employee to a new examination in order to evaluate whether the employee satisfies the requirements of the Regulations.

Following comments from the Norwegian Labour Inspection Authority a few linguistic amendments have been made to sections 3 and 12 to ensure that these correspond better with each other.

To Section 13 and Section 14 regarding the Appellate body concerning medical certificates for employees on Norwegian ships and mobile offshore units

In sections 13 and 14 regarding the appellate body the name of the appellate body has been changed to the "Appellate body concerning medical certificates for employees on Norwegian ships and mobile offshore units".

Section 13 now includes a reference to section 1 of the Regulations and the appendix to the Regulations as basis for decision on applications for exemptions and appeals against decisions made by a seafarer's doctor.

To Section 15 Appeals against decisions made by a seafarer's doctor

The provision now provides that appeals shall follow the rules of the Public Administration Act.

To Section 16 Exemptions

Employees may apply for exemption from the requirements of the Regulations. The provision on exemption has been moved to a separate section. The power to grant exemptions is more limited than before, since the medical requirements in the appendix to the Regulations for the most part reflect the minimum requirements of the STCW Convention, and employees cannot be exempt from the requirements of the Convention. For employees not covered by the STCW Convention, there will be more room for granting exemptions.

To Section 17 Postponed execution of decision

A minor change in the wording has been made in section 17, in that it refers to section 1 (the purpose of the Regulations) as basis for the decision, instead of repeating the entire text from section 1 directly in section 17 the way it was previously done.

The provision of section 17 regarding postponed execution of decision in the new Regulations is neither found in the MLC, 2006 nor the STCW, but is continued for practical reasons. The provision is a safety valve with the intention of ensuring that employees whose service on board will not be in contravention of section 1 of the Regulations, get to continue in their job even if they do not fulfil one of the formal health requirements in the Appendix to the Regulations. If the application for exemption could be decided the same day the application was submitted, there would not be a need for the provision of section 17, but it will normally take a few weeks from the submission of the application for exemption until it has been decided. To avoid employees being put ashore while waiting for decisions related to exemptions or appeals, the provision regarding postponed execution of decision is therefore continued.

It has in addition been specified that a decision on postponed execution cannot be extended by a new decision on postponed execution.

About the guidelines

In order to make the transition to the new system easier for the doctors, guidelines will be developed for the seafarer's doctors, which will address the Public Administration Act, TA3, requirements for quality system and medical guidance regarding the new appendix to the Regulations.

New Appendix to Regulations on the medical examination of employees on Norwegian ships and mobile offshore units

The amendments made in the appendix to the Regulations are primarily taken from the Guidelines and STCW, and no new special requirements for Norway have been included.

The level of detail in the appendix to the Regulations has been significantly increased, and we hope that this will be of help to seafarer's doctors in making assessments pursuant to the Regulations.

Following consultative statements from the Norwegian Oil and Gas Association the appendix has been updated, in that the term "seaman" has been replaced by "employee" or "seafarers". Other linguistic improvements have also been made.

Economic and administrative consequences

For the Norwegian Maritime Authority and the seafarer's doctors the changeover to electronic registration of medical certificates and declarations of unfitness will incur some costs. Seafarer's doctors included in this new arrangement will have to bear the costs of the changeover themselves. This will mainly involve the doctors ensuring that they have in their office a computer connected to the Internet, and a printer connected to the computer, and that they obtain a password for access to Altinn.

At the same time, the new system will most likely mean reduced costs for the NMA, as there will be less need to send out forms for medical certificates and declarations of unfitness to the seafarer's doctors. The certificates and declarations will now mainly be printed on the printers in the seafarer's doctor's office, whereas the paper version of the certificate or declaration will only be used exceptionally, in cases where an Internet connection is not available.

The new requirement of section 7 regarding the seafarer's doctors completing a course in maritime medicine in order to be approved, and that they have to complete a refresher course during their approval period, will entail an extra cost for the doctors. There is currently one such course offered by the Norwegian Centre for Maritime Medicine. This course is held over 5 days and costs NOK 8000 plus travel and accommodation. Course requirements for doctors wanting authorisation is today very common; medical examiners in the fields of e.g. aviation, diving and petroleum have basic courses and refresher courses as part of their approval scheme. A requirement for a course in maritime medicine is thus no extraordinary cost compared to other fields.

The seafarer's doctors will also have to implement a quality system pursuant to these Regulations. The purpose of the system is to quality assure the work of the seafarer's doctors. The NMA will not create a separate quality system for the seafarer's doctors to use; neither will we approve other quality systems. The requirement is, as mentioned above, that the doctor himself or herself finds an internationally recognised quality system to implement.

This will also incur a cost for the seafarer's doctor in connection with the implementation of the system, and for the NMA in connection with the approval of the seafarer's doctors.

The consultation included a cost estimate of what it would cost for a seafarer's doctor to become certified according to ISO 9001 and IMHA Quality. We received several consultative statements saying that these costs were too high for a seafarer's doctor to bear, in particular for those issuing few medical certificates. The Norwegian Maritime Authority has taken this into account, and there is therefore no requirement for certification of the quality system in the new Regulations.

It is up to the doctors themselves how they wish to obtain and implement their quality system. One way of doing this is to become certified by a third party such as DNV or IHMA Quality, another is to create their own quality system based on an international standard such as ISO 9001. Seafarer's doctors who choose the last solution, will have to attach necessary documentation in their application showing that this is an adequate quality system. If the doctor chooses to become certified through e.g. IHMA Quality or DNV, the certificate will be sufficient documentation.

In the guidelines to the Regulations, it will be explained how the doctor can document that he or she has implemented a quality system in accordance with an internationally recognised standard.

 

 

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