David Shackleton. August 2011.
The GMC have issued guidance on confidentiality and say that any form of Occupational Health consultation by an Occupational Health Physician (OHP) is the same as other medical encounters in the sense that confidentiality applies in exactly the same way. For the purposes of confidentiality the employee is in the same relationship with the occupational health doctor as any other patient. Anything that results from the encounter is medically confidential, even a simple fit/not fit opinion. The patient must give informed consent to every aspect of the consultation, including any output from it, otherwise the consultation cannot proceed.
So a consultation with an occupational physician needs to have the following elements:
- At the beginning of the consultation: The employee must be told the reason for the consultation, what it will involve and the possible outcomes. It must be explained that the content of any report will be discussed with the employee at the end of the consultation and that relevant information cannot be concealed or withheld.
- At the end of the consultation: The OHP needs to indicate what information or opinion he or she would like to communicate, and to whom. He or she can only go ahead with that if the employee consents, so they can be given three options:
- Just agree that the doctor will write a report along the lines discussed and send it to the intended recipient. A copy will be available in the occupational health notes for the employee to see if he or she wishes. This is often fine for a simple fit/not fit outcome or a simple review letter.
- The OHP will prepare a report along the lines discussed and send it out as normal, with a copy to the employee at the same time. Many choose this option.
- The OHP allows the employee to know the exact content of the report and gets specific consent before it is sent to anybody else. This can be achieved by dictating or writing the report in front of the employee there and then, or corresponding with them after the consultation. The latter probably introduces an unacceptable delay for the referrer so is to be avoided if possible.
None of the consent has to be in writing but it is probably advisable in contentious cases. A note should always be recorded in the medical record to indicate that consent has been dealt with.
Doctors should normally follow GMG guidance. Other health professionals may also choose to adopt the same principles.
If the employee does not consent
If the employee withholds or withdraws consent at any stage, the interview/examination cannot be continued and the referrer should be notified that no opinion can be given. If the employee has opted for C. above and asks for changes to be made, it is possible to correct factual inaccuracies but not to have the medical opinion refashioned, restricted or otherwise interfered with. This would undermine the impartiality and objectivity of the report, making it less useful to the referrer. If the report cannot be agreed then the referrer will be notified that there was no consent for the release of the report.
There are some statutory requirements that relate to medical confidentiality. For example:
Data Protection Act 1998
Individuals or their representatives, authorised in writing, may apply for access to their occupational health records. Applications made in this way will be regarded as being under the provisions of the Data Protection Act 1998 and the person responsible for providing access will be familiar with the provisions of that Act. Once the ‘data controller’ or their representative is sure the applicant is entitled to see the record, they must give access within certain time limits. If the information that the data subject is entitled to have is unintelligible to a layperson, an explanation of the relevant terms must be provided.
Access to Health Records Act 1990
The entitlements under this Act, as they relate to health records of living individuals, have been largely repealed and replaced by the Data Protection Act 1998. Applications may continue be made for the release of information that relates to individuals who have died.
Access to Medical Reports Act 1988
Where the Occupational Health Doctor or Nurse requests a report from an employee’s General Practitioner or a Specialist, the Provisions of the Access to Medical Reports Act 1988 apply. The person requesting the report will be familiar with the provisions of the Act. The employee’s rights under the Act will be explained to him or her and an appropriate consent form signed .
Equality Act 2010
Confidential clinical information may be held which indicates that an individual will be classed as disabled under the Act. Management will need to know what “reasonable adjustment” might be necessary but any disclosure of confidential information requires informed consent.
Disclosure to Legal Advisers
Requests for disclosure in connection with litigation must be accompanied by an appropriate written consent or court order. The responsible Occupational Health Nurse or Physician will examine the contents prior to disclosure to ensure that the material is covered by the consent form or court order. Particular care is necessary to avoid inappropriate disclosure of material that may be legally privileged, for example, copies of correspondence between the employee or the employer and their legal representative that may have been filed in the medical records.
General Medical Council. Duties of a Doctor Registered with the General Medical Council - Guidance for Doctors: Confidentiality. GMC, London, October 2009.
General Medical Council. Supplementary Guidance. Confidentiality: disclosing information for insurance, employment and similar purposes