DAN Legal Network

Verse yourself on the important legal topics of medical questionnaires, post-dive and pre-dive logs, and safe travelling to dive sites.
 
The medical enquiry

To quote a seasoned diving professional: “There is nothing underwater worth risking your life to see. Be truthful and accurate when completing your medical history questionnaire.”

Those who have followed the ongoing series of discussions about scuba diving and the law would have noticed that we have been concentrating mainly on liability issues, following the occurrence of a potential incident and the legal consequences thereof. In this article, we turn the focus toward preventing incidents and the individual diver’s responsibility in this process. Might I hasten to add that this is actually more important than managing or mitigating the consequences of a loss. Hence, this discussion revolves around prevention rather than cure. By way of analogy: When you go into a malaria area, you take preventative medication; it makes medical sense. When you get married, you sign an antenuptial contract to mitigate potential complications in the event of a divorce.
 
In the same way, your medical history questionnaire forms a major part of protecting your health and safety interests, including the possible recommendation to see a physician, before beginning scuba diving training.
At the beginning of every scuba diving training programme, and sometimes even prior to dives by previously certified divers, participants will be required to fill out a medical history questionnaire. This questionnaire is part of a larger document called the medical statement. You may have enrolled for a specific course where it forms part of the initial paperwork. Alternatively, you may seize the opportunity for diving training on the spur of the moment while on holiday, whether in the form of a full dive training programme or by means of a shortened resort course. Either way, at some stage you are given a medical questionnaire. Even certified divers and existing DAN-SA members may decide to enrol in additional diver training programmes where they too will be handed a medical questionnaire. Now, the dilemma is this: You may really want to go diving and, therefore, you may be tempted to simply check everything off so that you are cleared for diving with no hassles. You may even, truthfully or otherwise, forget about the asthma (or any other illness for that matter) that you have, or had, even as a child years before.

Some dive operators go as far as to give online hints on how to fill out the questionnaire properly. DAN-SA applauds these initiatives. However, the onus remains on you, as the deponent, to ensure that accurate information is provided. Some franchises retain a clause (correctly so, in our view) that states: “The information I have provided about my medical history is accurate to the best of my knowledge. I agree to accept responsibility for omissions regarding my failure to disclose any existing or past health condition”. The medical statement and history enquiries have explanatory content and bold-lettered wording that request you to read carefully and apply your mind to the questions and answers before answering them. Admittedly, some of the information on the recreational scuba diver’s physical examination may not apply to you. However, it is beyond the field of knowledge of a lay person to interpret any exceptions. In fact, it may even be beyond the field of expertise of a general practitioner who is unfamiliar with scuba diving. Therefore, if the opportunity is available, we advise that the form be completed in consultation with your physician. If you are under the care of a doctor, you obviously have some information to add to the form, right? If your doctor is not available, or if you have any doubts whatsoever, please feel free to contact DAN-SA. DAN-SA has access to a panel of diving medical experts – all of whom are divers themselves and are in favour of helping divers to dive safely (even with certain medical conditions that might be considered disqualifying otherwise). Also, remember that the diving operator or instructor is unlikely to be a physician. They may guide you in the completion of the form, but the guidance may also be insubstantial. Therefore, first and foremost, it is crucial to answer the questionnaire truthfully. If in doubt, call DAN-SA.

You wear a seatbelt on every drive, even when it does not come into play. We do this because it is wise to do so and also because it is a legal requirement in most countries. The same is true for the medical questionnaire. If things go wrong and you have withheld certain medical history information, there may be several complications; including putting other divers’ lives at risk if you were to have a medical emergency due to an undeclared condition. In addition, the denial of any medical condition may also lead first responders and rescuers to presume that your untoward symptoms are diving related rather than possibly due to a known medical condition, thereby causing delays in receiving the appropriate treatment.

We previously touched on certain legal issues regarding waivers that have now become established in our system of law by a recent legal precedent. The courts are inclined to assume that the generally accepted and prescribed practice is the result of the best experience and that which is best suited to obtain the most satisfactory results. This is not only common sense; it is also supported by legal authority when a case is subjected to legal scrutiny. The general rule of law is that where there is reasonable trade usage, or general application within a community, or where a form of professional practice is generally adopted by a particular profession, interaction with a particular trade or profession becomes the usage or practice by implication. In medicine, this is sometimes called the standard of care, which means that it is in accordance with the practice that is approved by the greater body of medical professionals. As such, any medical practitioner who reviews your medical history questionnaire would be required to have the appropriate qualifications, exposure, and expertise to attend to the health and safety issues. In your case, it is expected that you, as the prospective diver or trainee, are truthful and honest in answering the medical questionnaire. DAN-SA’s Industry Partners and the greater diving industry are also encouraged to take the completion of medical questionnaires seriously. 

To log or not to log? 

When a witness is required to testify in a court of law, he or she is permitted to refer to notes made of an incident or event to refresh their memory. This process is, however, well legislated and prescribed in the law of evidence.
 
We, as divers, are all familiar with the axiom, “Plan your dive and dive your plan”. This being the case, how would you give legal account of this if required? The only conceivable way is by memory or by referring to notes. The legal process in South African law can be very tedious and time-consuming. Not infrequently, witnesses are required to testify on events that occurred many years previously. It is, therefore, important to keep logs of diving activities, particularly when there has been an incident, event or even a near-miss situation. The purpose of dive planning is to ensure that a dive will be completed safely and the goals achieved. Some form of planning is done for almost all underwater dives, even though the complexity and detail may vary.1 A recreational diver, technical diver or dive group may seem to be less constrained, but some legislation or operating procedure will invariably apply. Failing anything else, the guidelines of the training organisation would be regarded as the norm.

Generally speaking, written diving logs are sorely deficient, if not completely absent. Divers with access to computers potentially have a downloadable, electronic depth-time record, but this is eventually displaced from the computer’s memory. Moreover, in rental situations it becomes very difficult to associate historic computer records with a specific individual (both practically and legally). As a bare minimum, any anomalous information (where the dive plan and the actual dive performed are at odds) should be kept on record with specific reference to the individual, with the appropriate date and time information included. Whenever possible, the documentation should be written in a way that would make it easy or possible for a third party to interpret. As such, the use of non-standard abbreviations or cryptic references should be avoided. Where standard operating procedures (SOP) apply, reference may be made to these as an extension of the record. For example, in a lost diver situation, following the SOP for a lost diver may be recorded with specific notes on any exceptions or deviations to the plan. This reduces the amount of additional documentation that is needed to provide a sound record. Obviously the SOPs would also need to be available in support of any future enquiry. They should therefore be preserved with the relevant records on at least an annual basis.

It is allowable to use or to testify on the log sheets that were completed after a dive. Furthermore, any pre-dive planning documents are also admissible, provided that they are authenticated and ruled as admissible. One cannot, therefore, underestimate the value of recording and keeping records of any diving activity, be it post-dive recording (logs) or pre-dive recording (dive planning).

Travelling to diving sites 

In response to the comments we have received during our road shows, DAN-SA LegalNet has been asked to offer input on relevant information regarding travelling to dive sites. We mentioned the example of seat belts earlier in this article and, indeed, one of the latest legal developments is actually on the use of seat belts when travelling. Of relevance, Regulation 213 (6A) of the regulations promulgated in terms of the National Road Traffic Act, 1996 (Act No. 93 of 1996) has been in force since 30 April 2015. It defines an infant as a person below the age of three years. The following is stated in paragraph six:
 
The driver of a motor vehicle operated on a public road shall ensure that a child seated on a seat of the motor vehicle:
a. Where it is available in the motor vehicle, uses an appropriate child restraint; or
b. If no child restraint is available, wears the seatbelt if an unoccupied seat which is fitted with a seatbelt is available.
 
The driver of a motor vehicle operated on a public road shall ensure that an infant travelling in such a motor vehicle is seated on an appropriate child restraint: Provided that this provision shall not apply in a case of a minibus, midibus or bus operating for reward.
 
Without discussing the reasons for the exclusions (minibuses, midibuses or buses operating for reward), all DAN-SA members and readers should take note that the authorities have been instructed to intensify road blocks and implement extensive law enforcement on the non-compliance of this requirement. You will be fined if infants or children are not buckled up as prescribed. Kindly adhere to this, as the reason for introducing this legislation is valid and also commended by DAN-SA.

Until next time, safe (and legal) diving and driving.

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