Professional registration – a new avenue for civil claims

2014-12-17 13:10

Despite opposition from practitioners, the Department of Labour seems not to back down from their decision to implement professional registration for health & safety practitioners via the new Construction Regulations. The chief inspector has approved the South African Council for Project and Construction Management Professions as the custodian for health & safety professionals and practitioners working in the construction industry and this is set to come into operation in August 2015.

Whilst some practitioners and supporters of this registration process are of the opinion that it will prevent workplace accidents and increase the value of the profession, others are dead against it as it creates a false sense of reality and puts a damper on the need for a proper curriculum for training in this discipline.

But aside from the education vs. registration debate, there is a new concern, which seems to have been ignored by both proponents and opponents of this scheme.

Previously, a Health & safety practitioner would not have been held liable for any negligent acts or omissions, as they were mere employees of their employer, the latter who carries all accountability.

With the SACPCMP registration in force, employers will no longer have the freedom to appoint whomever they deemed adequately trained for the position, but will have to pick from a “list” of “registered persons” from the SACPCMP national register.

Section 35(1) of the Compensation for Occupational Injuries and Diseases Act, 1993, employees and their dependants cannot institute legal action against employers for injuries and illnesses sustained at work, but the new professional registration could pave a new avenue for these actions.

The majority of Health & safety officers, who will be registered and issued a “licence” of competence by the SACPCMP, does not have any medical training required to function within the Occupational Health arena. Any oversight of an occupational health risk which subsequently result in an illness would thus be a failure of the registered person to perform their legal duties as a registered person.

This failure per se, would be sufficient grounds to lodge civil actions against the professional or practitioner whose duty it is to identify sources of injury and illnesses and implement appropriate mitigating measures.

The duties of registered persons are prescribed in the registration rules of the SACPCMP, and it must be accepted that once a person has gone through the proficiency examinations, the Council will deem the person competent to be registered. Failing any such duty will result in accidents and illnesses at work and practitioners stand the risk of being “de-registered” or criminally charged for this breach under the Project and Construction Management Professions Act, 48 of 2000.

Once found guilty by the Council, it opens the door for civil claims by injured persons against the registered person concerned. In the event of fatalities, these claims can run into millions of Rand.

A countermeasure to these claims will be Professional Indemnity Insurance, which will cover the practitioner in the case of negligence, but not in failure to perform their legally required duties as prescribed in the registration rules.

With less than 8 months before the registration becomes enforceable, even the supporters of registration is now questioning the ability of registered persons to perform the duties prescribed by the Council.

Time will tell, and the courts could find themselves very busy in future as more and more people are turning to the judiciary for negligent conduct of regulated professionals.

Opposition to the registration scheme, some of whom are highly qualified professionals in Occupational Health, Medicine and Law, are of the opinion that the registration is not going to have the desired result, but will only discourage addressing failing education standards within the profession.

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