Over the past few years I have listened to many cheerless stories of individuals who have exposed unacceptable practices within universities and hospitals. The institutional response is almost formulaic.
A frequent part of the common experience is the abuse of occupational health procedures. Following an incident this week involving a colleague, I have summarised some aspects of UK occupational health law below.
Most of these individuals started with the belief that their institutions would assume responsibility for upholding their own rules of conduct. They assumed that responses would be honest, colleagues and professional bodies would behave honorably, and that someone would take responsibility for the safety of the product (whether that product is a drug, honest science, open academic discourse or care of individual patients).
In reality, most are projected into an Alice in Wonderland world of sham procedures, collusion, lies and bullying. Many become ill (see the case of Dr Z), and some die. Distress signals are used by poor managers to invent "health concerns" and to avoid rational discussion about genuine problems. That hospitals and medical schools abuse their staff through health mechanisms is indicative of deep immorality within these institutions. The process usually starts as an apparent expression of genuine concern about the health of the employee.
Sadly, psychopathic administrators and medical leaders are rarely subjected to psychiatric or medical evaluation.
Employees should almost never agree to an employer's "offer" of health evaluation under these circumstances. When such evaluation takes place, it should only be for the benefit of the employee. Any assertion by the employer that they must have any right of access to health information is illegal and constitutes serious bullying.
Aspects of the relevant law is summarised from these sources: a) Occupational Health Law, 4th Edition, Diana M Kloss ISBN 0632-064978, b) Medical Ethics Today: Its Practice and Philosophy, Veronica English, Gillian Romano-Critchley. 2002 2nd Ed. BMJ Books, ISBN 0727917447
- The physical occupational health (OH) records technically belong to the employer, but the employer has no right of control or access to the information therein.
- OH doctors should have an agreement their employer with regard to confidentiality of records. If the doctor leaves the company, records remain the property of the employer, but should be passed to a new doctor or nurse with the same obligations. If an employee moves to another employment, OH records can only be transferred to the new employer with consent.
- Employers cannot enforce terms in contracts of employment stating that employees must provide copies of medical records.
- OH doctors have a duty of confidence which is the same as that for any other doctor. For example, if an OH physician were to reveal to the human resources department (without permission) that an employee has a drink problem the doctor could be sued for damages. Secretarial staff who have access to confidential information share these obligations.
- According to the General Medical Council there are restricted circumstances under which information could be conveyed by a doctor:
- The patient explicitly consents.
- Some circumstances where the doctor shares information with other health professionals caring for that patient
- Parliament requires disclosure (notifiable diseases, RIDDOR reporting of injuries at work, and more worryingly "terrorism legislation")
- Disclosure may be made to a statutory regulatory body for investigation into a health professional's fitness to practice (it is worrying that the GMC would see fit to incorporate such a provision without detailed qualification)
- Disclosure is in the public interest, e.g. to the police about a serious crime
- If consent is provided, it can later be withdrawn. Consent should be in writing for the protection of the doctor or nurse. Consent should clarify exactly what records may be passed over - not simply "all records". The OH doctor can refuse to accept partial consent if that would be misleading through omission. An OH doctor should not communicate with the patient's own doctor without consent.
- Guidance from the Nursing and Midwifery Council (2002) is more coherent with greater emphasis on the purpose for which information was supplied: "To trust another person with private and personal information about yourself is a significant matter. If a person to whom that information is given is a nurse, midwife or health visitor, the patient or client has a right to believe that this information, given in confidence, will only be used for the purposes for which it was given and will not be released to others without their permission".
- Mere attendance at the OH department does not imply consent.
- Even if an employer is facing legal action by an employee, OH records should not be disclosed to the employer without consent or a court order.
- An occupational health doctor may find that an individual is somehow unfit for a job or that the employee is in danger. This does not justify a breach of confidence. If the danger is to others there may be a case for breach of confidence, but even then this requires very careful deliberation.
- Per the Faculty of Occupational Medicine's Guidance on ethics: "Occasionally the occupational physician ....may find that an individual is unfit for a job where the safety of other workers or the public is concerned. He should then take great care to explain fully why he thinks the disclosure of unfitness is necessary.... Where this is not obtained the occupational physician is faced with an ethical dilemma..... Ultimately, the safety of other workers and the general public must prevail..."
- Occupational health doctors should not become involved in advising employers on the validity or otherwise of sickness absence of an employee. They can however (in consultation with the employee) advise management on potential changes required to the conditions of employment. The doctor may also advise the employer about future employability but without providing clinical details of sickness to the employer.
- Some occupational health records may be of direct relevance to the employer (for example where the employer has a legal requirement to monitor toxic substances). Those records should be maintained separately from other records. Conveying of such records also requires consent.