Guidance for Safety Representatives
Employees are often examined by doctors at the request of their employer. This can be for a variety of reasons, such as a fitness for work assessment. A medical report can be requested if a worker is still at work but having problems because of a medical condition, has been off sick for some time, is preparing to return, or where consideration is being given to early retirement. Sometimes they are asked for if adaptations may be required if the worker is either disabled or requires temporary adjustments because of a medical condition.
It is important that employees know their rights to access to the information contained in any report. There should also be procedures in place to ensure that this happens. On the other hand procedures should ensure that there are no un-necessary delays in getting a report to the employer or pension fund.
This guidance is intended to outline the legal position and give advice on what unions and safety representtaives should be seeking to protect their workers and ensure they are aware of their legal rights.
However in most cases, disputes regarding access to medical records relate to what the employer will do with the information. The solution is to have good sickness absence procedures, access to occupational health advice, union representation on pension fund trustees, and a strong awareness of disability issues. Guidance on sickness absence policies is available at: http://www.hse.gov.uk/pubns/web02.pdf
The law on access to medical reports is unfortunately not always very clear. The main regulations are the Data Protection Act 1998 and the Access to Medical Reports Act 1988, but in addition common law applies and doctors must also take into account any guidance from the General Medical Council.
This is law created by judges and creates a principle that a patient must give 'informed consent'. Although this was developed to deal with treatment issues, it also applies to the disclosure of information to any third party, including an employer or insurer. The effect of this is that a doctor must tell a patient what a 'reasonable doctor' would disclose.
Data Protection Act:
This states that a worker has the right to see any data kept on them and includes any medical or occupational health records. It does not however state that this must be done before the information is sent to a third party.
Access to Medical Reports Act:
This specifically states that the worker must be asked in advance whether they consent to the report being sought and if they want to see the report before it is sent to the employer, insurer or pension fund. If they do wish to see it beforehand they can withdraw consent once they have seen it. The worker has to arrange access within 21 days. However the Act only applies to medical reports prepared by a medical practitioner who has been responsible for the clinical care of the worker, so if the worker is only being examined by a doctor and not treated the act may not apply. Nor does it apply to reports by nurses.
In addition there are some situations where there is a statutory requirement to either conduct a health surveillance or health assessment. An example is COSHH where an employee may have to be assessed for fitness to work.
The main guidance is that of the General Medical Council which regulates all medical doctors and which can take action against if doctor is guilty of misconduct. It is however only guidance and the GMC stresses that doctors must use their own judgement.
This guidance confirms that a doctor should gain a patient's consent before disclosing information to a third party (and that includes a worker who is being examined only for a medical report). It goes on to state:
If you are asked to provide information to third parties, such as a patient's insurer or employer or a government department or an agency assessing a claimant's entitlement to benefits, either following an examination or from
existing records, you should:
(a) be satisfied that the patient has sufficient information about the scope, purpose and likely consequences of the examination and disclosure, and the fact that relevant information cannot be concealed or withheld
(b) obtain or have seen written consent to the disclosure from the patient or a person properly authorised to act on the patient's behalf; you may accept an assurance from an officer of a government department or agency or a registered health professional acting on their behalf that the patient or a person properly authorised to act on their behalf has consented
(c) only disclose factual information you can substantiate, presented in an unbiased manner, relevant to the request; so you should not usually disclose the whole record, although it may be relevant to some benefits paid by government departments and to other assessments of patients' entitlement to pensions or other health-related benefits, and
(d) offer to show your patient, or give them a copy of, any report you write about them for employment or insurance purposes before it is sent, unless:
(i) they have already indicated they do not wish to see it
(ii) disclosure would be likely to cause serious harm to the patient or anyone else
(iii) disclosure would be likely to reveal information about another person who does not consent.
This makes it clear that an employee has a right to see a report before it is sent to the employer or pension fund.
All doctors must ensure that a patient gives consent to a report being sent to the employer. In addition an employee has a right to see any medical report. However the legal right to see it in advance and withhold consent only applies to reports from a doctor who is treating them, but the GMC guidance makes it clear that this should apply to all medical reports. The doctor should also advise the employee in advance what the report says and discuss any concerns the employee has before it is sent.
If an employer is seeking information from a doctor who has been treating an employee they should get written consent from the employee beforehand and the doctor should not disclose any information to a third party without ensuring that the employee has been given the opportunity of stating whether they wish to see such a report before it is sent.
Before an employer asks an employee to go for a medical examination for any purpose they should notify the employee what the examination will entail and what the purpose is. The employee should be given the opportunity of challenging any such request if they feel it is unwarranted.
The doctor should confirm that the patient is aware of the implications of the examination and has consented. They should also advise them that they have the right to withdraw consent at any time.
Many doctors will then inform the patient immediately after the examination what they intend to say and discuss any concerns they have. This is normally the best way of ensuring the employee is aware of what the report will say. If the employee indicates they are content, the report is then sent. If the patient objects to the contents of the report then this gives them the opportunity to be addressed. Usually this is enough but if the employee withdraws consent the doctor should suggest that they seek advice from their union on the implications of refusing consent. (see below).
If the doctor does not outline the reports contents and conclusions during the examination, and the employee has indicated they want to see it, they should arrange to send a copy of the report to the employee as soon as possible and seek their consent to send it to the employer, or pension fund.
In the case of requests for a report from a doctor who has been treating a patient where no examination is necessary the doctor should send a copy of the report to the patient and ask for them to confirm their consent before it is sent to the third party. This usually relates to compensation claims.
Most problems relating to access to medical reports arise from workers concerns over what the employer or pension trustees will do with the report rather than the report itself. It is therefore important that unions support workers in their dealings with management over what can be very stressful issues relating to early retirement, forced return, adjustments to the workplace, redeployment or even dismissal.
In respect of the reports themselves the following issues are often reported.
The employee disagrees with a report
The first step is to talk it over with the doctor. If the doctor's opinion is based on incorrect facts the employee should discuss the matter with the doctor who would normally be happy to reconsider their opinion. However, if the facts are correct they will inevitably not be able to change their professional opinion but should take the time to explain it to the employee. In the event that the employee continues to disagree, they can either ask for a note outlining their disagreement to be attached to the report or request a second opinion before agreeing that the report be sent but if that is the case they should notify the employer of this.
The report contains irrelevant information
Sometimes a report contains detail that is not relevant to the employer or pension fund. Often all that is necessary is a recommendation on fitness to work along with any information directly relevant to that. There is no need for the full medical record, nor should information on any other conditions be disclosed unless directly relevant. If the employee is concerned over this they should raise it with the doctor and, if necessary, remind them of the GMC advice (above)
The employee accepts that the report is accurate but does not want it sent to the employer
If the doctor is not treating the patient then they can still legally send it but very few doctors would do so and if they did send it to the employer they would be breaching the GMC guidance. However the employee must be advised of the consequences of not consenting to the report being sent to the employer. The employer will still be able to act without the medical information and if the employee is refusing access to a medical report then they cannot be expected to make adjustments without it.
Union representatives should seek to address the underlying issues which are usually concern over the consequences of the report. Simply refusing to consent to it being sent will be unlikely to be in the interests of the worker involved and instead the union should seek to negotiate the most favourable outcome achievable for the employee.
For TUC advice on occupational doctors: http://www.tuc.org.uk/h_and_s/tuc-15982-f0.cfm
There is also separate advice on what employers can do with information about workers health. A summary can be found in section 6 of the Information Commissioners guide: http://www.ico.gov.uk/upload/documents/library
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