Keeping a confidence

first_imgKeeping a confidenceOn 1 Dec 2000 in Personnel Today Related posts:No related photos. Disclosing confidential medical information can lead to employees makinglibel claims, but practitioners should be aware there are circumstances inwhich is it acceptable.  By GillianHoward Most OH physicians and nurses understand and practise sound ethical medicinebased on the codes of ethics published by the General Medical Council(Confidentiality, Protecting and Providing Information, June 2000), the Facultyof Occupational Medicine (FOM, fifth edition) and the UKCC. It is commonly accepted that when an employee is seen by an OH physician ornurse for an assessment, whether pre-employment, for fitness for work, for anassessment under the Disability Discrimination Act 1995 or in respect of anemployment tribunal or personal injury claim, the employee must give his or herexpress consent to the disclosure of any medically confidential information. Often the report will not disclose anything of a medically confidentialnature, but will state “fit for work”, “fit for work subject tomodified duties (specified)” or “unfit for work”. No consent isrequired for statements of that nature. There are cases where someone in the company other than the OH practitionermight need to know more about the medical condition. For example, if theillness is one of alcohol or drug addiction and the company has a policy ofhelping in its treatment, someone in the company might need to know toauthorise the policy and the sick pay for the employee. Another example is where there is a disciplinary case or where selection isbeing made for redundancy, and absence from work is a criterion. The reason forthe sick leave might need to be disclosed to protect the individual under theDisability Discrimination Act 1995 from any discrimination or from an unfairdismissal. It might also be important for a manager to understand more about acondition before deciding whether to offer the person a job and what specialconditions there should be. Clinical details of a confidential nature do not necessarily have to bedisclosed, but if the OH physician or nurse believes there is such a need,obtaining written informed consent is the only practice to pursue. What is the duty of confidence? In the case of London Borough of Hammersmith & Fulham and Anor vFarnsworth [2000] IRLR 691, the Employment Appeal Tribunal referred to themeaning of a doctor’s duty of confidence. It put it succinctly, “A duty ofconfidence is one which prevents the holder of confidential information fromusing it or disclosing the information for purposes other than those for whichit has been provided, without the consent of the person to whom the duty ofconfidence is owed.” It also referred to the employer’s defence, that it did not know whatmedical condition was involved when it rejected Farnsworth for the job, saying,”A self-denying practice of not making further enquiries of itsoccupational physician as to the medical history of a job applicant was notjustified.” In this case the OH physician had obtained Farnsworth’sinformed express consent to disclose her previous history of depressive illnessto her prospective employers if necessary. The EAT continued, “In the present case the occupational healthphysician was not bound by any duty of confidence… the applicant had completeda form providing information and giving her consent to medical informationabout her being provided to her employers. The purpose of the examination andthe purpose for which information and consent was given was to enable thecouncil to reach a decision as to whether or not she would be employed.” Informed express consent Informed consent means the patient has agreed either orally or in writing –which is better practice – to the disclosure of the specific clinicalinformation for a specific purpose that has been fully explained to him or her.The patient should also be fully aware of and give consent to the disclosure ofthat information to named individuals who have a “need to know”. When an employer obtains an employee’s consent to be seen by its expert in,for example, a claim for personal injuries, unfair dismissal or disabilitydiscrimination, it is sensible to ensure it is clear consent is being given notonly to the examination but also to the disclosure to the employer of anyreport – it is worth nothing to the employer if the patient consents to theexamination but then refuses to allow the report to be sent. Implied consent In a controversial Court of Appeal decision, one judge, obiter dicta (not aspart of the reasoned decision), suggested that if a medical examination isrequired by an employer for litigation, “by consenting to the medicalexamination on behalf of the employer, an applicant is consenting to thedisclosure to the employer of a report resulting from that examination. Nofurther consent is required. A practice under which a person who, having agreedto be examined, then claims a veto upon disclosure of the report to those whoobtained it would be an impediment to the fair and expeditious conduct oflitigation” – per Lord Justice Pill, Kapadia v London Borough of Lambeth[2000] IRLR 699. It would be unsafe to rely on those dicta, even though an eminent judge inthe Court of Appeal made it. It is at odds with all the codes of practice onethics and with the dicta of Mr Justice Morland – admittedly in a lower court,the Queen’s Bench division of the High Court. Medical professionals are warnedto obtain written informed consent to the disclosure of any report, wherever itis to be sent. Writing and publishing medical reports can lead to all sorts of legalcomplications. One unfortunate doctor, Dr de Taranto, was not only sued forbreach of confidence but was also successfully sued for libel – Cornelius v DrN de Taranto, 30 June 2000, Case no 98-C-38. Libel consists of a statement which is untrue and prompted by malice, andwhich “has the effect of lowering the reputation of the individual in theestimation of right-thinking people”. It has to be published before it can found to be an action for libel. Herethe report had had limited publication, going only to Mrs Cornelius’ GP and toa consultant psychiatrist whom Dr de Taranto thought she had persuaded MrsCornelius to see for treatment. The judge held that the correct test in determining this question was toconsider those statements from the point of view of a reader in the healthservice in its broadest sense, taking account of how nursing auxiliaries andadministrators, clerical staff and receptionists would read them. If onlypsychiatrists, doctors and qualified nurses had read the report they would notthink less well of Mrs Cornelius, but the additional category of readers”probably might do so and behave towards her very differently because ofit”. Checking the facts Had Dr de Taranto checked the letter in the GP’s notes properly, she wouldhave understood that theft charges referred to were made against two maleyouths, not Mrs Cornelius, and charges of receiving stolen goods broughtagainst the patient when she was 18 were eventually dropped. Dr de Taranto was found to have been in breach of her duty of confidence indisclosing her medico-legal report to a psychiatrist and Mrs Cornelius’ GP, as nowritten consent had been given. Indeed, she had refused to give her writtenconsent. Dr de Taranto assumed implied consent had been given, but the judge rejectedthis argument. He said that for implied consent to be demonstrable, Dr deTaranto would have had to demonstrate she had shown her draft report to MrsCornelius and allowed her to comment on it, and she should have had a clearrecord in Mrs Cornelius’ notes that her consent was being given for this reportto be sent to her GP and a consultant psychiatrist. None of these matters waswritten up in the notes. The judge held that the patient’s “express consent” should havebeen obtained, preferably in writing. He said he was mindful of Article 8 ofthe Human Rights Convention – the right to respect for private and family life– even before the Human Rights Act 1998 came into force. However, he ruled that damages should be limited to injury to feelingscaused by the breach of confidence, and that considering all the circumstancesof this case the award should be modest – £3,000, plus £750 for Mrs Cornelius’legal costs in trying to retrieve the medical report from the NHS records. Gillian Howard is an employment lawyer and consultant with London lawfirm Howard & Howard Staying on the right side of the lawBecause everyone now has a right to argue that their privacy has beenbreached under Article 8 of the Human Rights Convention, brought into UK law bythe Human Rights Act 1998 on 2 October 2000, and because of lay people’sheightened awareness of their rights, doctors and nurses must be very carefulabout what they write in medical reports and notes, and must ensure they havefollowed their ethical guidance.It is best to ask a respected colleague what they would do in a trickysituation, or, even better, to ring for advice from the MDU, MPS, RCN or UKCC.It is essential to obtain written informed consent, and to ensure thepatient understands what will be disclosed and why and to whom the disclosurewill be made.Whether or not there is a statutory right of access to the report, manydoctors still dictate the report in front of the patient and make a note of thepatient’s consent or comments. In any event express informed consent to thedisclosure of that report must be obtained – and there is nothing like gettingit in writing! Comments are closed. Previous Article Next Articlelast_img read more