Preparation of a case to the

appelate body concerning medical certificates

Hege Sofie Imsen, NCMM

ADM 26.08.2014

Key points

• Legislation:

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

– The Public Administration Act (Forvaltningsloven)

• The case shall be sufficiently investigated

• Give recommendation to the appelate body

• Justify decisions / Risk assessment

Regulations of 5 June 2014 No. 805 on medical examination of employees on Norwegian ships and mobile offshore units • Section 1 - Purpose:

These Regulations shall ensure that the employee is medically fit for service on board, is not suffering from a medical condition likely to be aggravated by service at sea or to endanger the health and safety of other persons on board.

The seafarer`s doctor`s administrative procedure

• The decision of the seafarer's doctor pursuant to the first paragraph is an individual decision in accordance with the Public Administration Act.

• The seafarer's doctor shall notify the employee and the company if the overall results of the medical examination show that the employee does not satisfy the health requirements for issue of a medical certificate.

To appeal on the seafarer`s docter`s decision and apply for exemption from regulation to vision, hearing and health

• The employee applies for an exemption in writing.

• The application for exemption shall be made to the seafarer's doctor who made the decision to issue of a limited medical certificate or declaration of unfitness.

• Timelimit : 3 months

• The addressee, form and contents of the appeal – The notice of appeal shall:

a) be lodged with the administrative agency that has made the administrative decision

b) be signed by the appellant

c) mention the administrative decision against which the appeal is lodged

d) state the alteration desired in the administrative decision

which is the object of the appeal.

To appeal on the seafarer`s docter`s decision and apply for exemption from regulation to vision, hearing and health

• The seafarer's doctor shall perform the examinations necessitated by the application. The application together with the seafarer's doctor's supporting information shall be forwarded to the Norwegian Maritime Authority which will prepare the case for the appellate body.

• Seafarer's doctors abroad shall send applications

for exemption to the Norwegian Maritime

Authority by way of a foreign service mission

Prepatation of an appeal case

The seafarer`s doctor shall review his desicion and shall carry out such investigations as are warranted by the appeal. A) change his desicion

It may rescind or alter the administrative decision if he considers the appeal justified.

B) remain/keep his desicion and send the documents to the appelate body as soon as the case has been properly prepared

Appellate body concerning medical certificates ( Fagnemnda)

• Has three members and consist of a medical practitioner who shall act as the head of the appellate body, a trade union representative and a representative from the Norwegian Maritime Authority. The trade union representative shall have competence in relation to the occupational category to which the employee belongs.

• The appellate body shall base their decision on section 1 and the appendix of these Regulations when considering an application for exemption or an appeal against a decision made by a seafarer's doctor.

• A decision made by the appellate body is an administrative decision pursuant to the Public Administration Act, and shall follow the rules of procedure set forth in the Act.

• The appellate body may impose specific limitations and conditions on the issuance of medical certificates; the limitations shall be entered on the medical certificate.

The Public Administration Act

(Forvaltningsloven) • The seafarer`s doctor has to follow this law in

his/hers administrative procedures

• The Public Administration Act`s requirements:

– Impartiality

– Duty to provide guidance (enable the seafarer to safeguard his interests in the case)

– Duty of secrecy

Appeal against and reversal of administrative

decisions

• Individual decisions may be appealed to the appelate body

• The administrative decision of the appelate body can not be appealed.

Chapter IV: Preparation of cases concerning individual decisions

• Duty to clarify/investigate the case and to provide information

– The seafarer`s doctor shall ensure that the case is clarified as thoroughly as possible before any

administrative decision is made.

– The seafarer shall know about important

information , so he can give his comments.

When is the case clarified/investigated as thoroughly as possible ? • How much information is enough ?

• Understanding

– The decision-maker has to understand the seafarer’s work demands and possible risks related to the condition - and be able to explain the grounds for the decision.

• Information

– Health

• A specialist report

• You are the specialists on the aim and rules of medical certificates for seafarers

• Ask the specialist for what you need to know, and give them information about the context and § 1 - aim for the certificate.

– The service to which the employee is assigned

– Working conditions, incl. trade area, what kind of vessel, shifts pattern etc

Capter V: Concerning the administrative decision • Shall be given in writing

• Grounds shall be given

- the seafarer`s doctor shall state the grounds at the same time as the desicion is made.

• The contens of the grounds

– Refer to the rules on which the administrative decision is based

– Shall mention the factual circumstances upon which the administrative decision is based

– Mention should be made of the chief considerations which have been decisive for the exercise of the administrative agency's discretionary powers. If guidelines have been given for the exercise of such powers, reference to these guidelines will as a rule be sufficient.

• Notification of the administrative decision to the seafarer

– As soon as possible

– In writing

– The grounds should be stated

– provide information on the right of appeal, the time limit for an appeal, the appellate instance, and the specific procdure to be followed for appeals as well as on the right to examine the documents

The appelate body

• The appellate instance shall ensure that the case is clarified as thoroughly

as possible before an administrative decision is made.

• It may require the subordinate instance to undertake further investigations etc.

• If the conditions for dealing with the appeal are not fulfilled, the appellate body shall summarily dismiss the case. The appellate instance shall not be bound by the fact that the subordinate instance has considered the conditions to have been fulfilled.

• If the appeal is given a hearing, the appellate instance may try all aspects of the case and thereunder take new circumstances into account. It shall consider the views presented by the appellant, and may also take into consideration matters not addressed by him. The appellate instance may itself make a new administrative decision in the case or rescind the previous administrative decision and return the case to the subordinate instance for a new hearing of the whole or part of it.

To make decisions

How to justify desicions?

Risk assessment.

Consequence Likelihood

Low = 1 Moderate = 2 High = 3

Very unlikely = 1

Acceptable risk (1)

Acceptable risk (2)

Consider mitigation measures

(3)

Likely = 2

Acceptable risk (2)

Consider mitigation measures

(4)

Unacceptable risk (6)

Very likely = 3

Consider mitigation measures

(3)

Unacceptable risk (6)

Unacceptable risk (9)

Thank you for your attention