Email this article The GMC and Access to Occupational Health Reports: Issues and Challenges
Dr Marcus G.P. Wong
Occupational Health Medical Adviser,
Transport for London
and
Dr Kartina A. Choong
Senior Lecturer in Medical Law,
University of Central Lancashire
Summary
According to the General Medical Council (GMC)’s Confidentiality Guidance 2009, doctors should offer to show or give a copy of the reports they write for employment or insurance purposes to the patients before the reports are dispatched to the commissioning party. The patients are then entitled to veto its release. This article examines the issues and challenges that confront occupational physicians in relation to this development. It will demonstrate that while this move by the GMC was inspired by the letter and spirit of existing law, it is revolutionary in nature insofar as occupational health reports are concerned. This, the work contends, could distort the nature of occupational health service, and compromise the health and safety of the patient as well as the public.
Contents
II. The GMC Guidance 2009: How revolutionary was it?
III. Trail Blazing or Treading a Dangerous Path?
I. Introduction
The General Medical Council (GMC), which is the regulatory body of the medical profession in the UK,(1) published a new guidance on Confidentiality in September 2009.(2) Replacing the guidance it issued in 2004,(3) the new wide-ranging document is accompanied by seven pieces of supplementary guidance which explain how the principles in the core document apply in situations doctors often encounter or find difficult to deal with.(4) The underlying principle remains unchanged from the previous guidance, in that information gathered as part of a professional encounter between a doctor and a patient must be treated in confidence and that any disclosure of such information must only be made with the consent of the patient except in defined, exceptional circumstances. Its supplementary guidance on ‘Disclosing Information for Insurance, Employment and Other Similar Purposes’ is nevertheless more explicit in detailing how a doctor who is requested to provide information to third parties like a patient’s insurer, employer or a government department or an agency assessing the patient’s entitlement to benefits, should convey the outcome of the assessment they made following an examination or from existing records. In particular, it stipulates that doctors should offer to show their patients, or give them a copy of, any report written about them for those purposes before it is sent; and that its subsequent dispatch to the commissioning party could only be made after obtaining the patient’s express consent.(5) These obligations therefore give patients a corresponding right to advance access and a right to veto the release of the report after reading its contents.(6) According to the GMC, their aim was to strengthen the notion of “no surprises” when such individuals have dealings with their employers or other third parties, on the basis of the report. This was prompted by cases previously reported to the Council where the contents of medical reports seemed to have differed markedly from what the patient thought would be conveyed.(7) This article takes a close look at this facet of the 2009 Guidance, and examines the challenges which it poses to occupational health practice.
The 2009 Guidance, like all other professional guidelines issued by the GMC,(8) is a fundamental way by which the Council determines the principles and values that underpin good medical practice in Britain. The authority for this is derived from section 35 of the Medical Act 1983 which empowers the Council to “provide, in such manner as [it] think[s] fit, advice for members of the medical profession on standards of professional conduct; standards of professional performance; or medical ethics”. Since this responsibility is an important dimension of the medical profession’s right to regulate itself,(9) and the right was in turn delegated to it by the state on behalf of society,(10) the advice it provides through the guidelines is steered by the mandate to “protect, promote and maintain the health and safety of the public”.(11) Thus when issuing professional guidances, the Council’s main priority is the protection of the public interest rather than the interest of the profession.(12) The contents must also not be inconsistent with the law,(13) and are subject to judicial review.(14) It is important to highlight that as these guidelines are not legal instruments, there are no legal sanctions for non-compliance. But as doctors could be subject to disciplinary proceedings by the Council, they would risk jeopardising their GMC registration, without which they would not be able to practise medicine in the UK. It is equally important to note that all GMC Guidances apply to the medical profession as a whole, irrespective of specialty. Thus, whilst the 2009 Guidance was not specifically targeted at occupational physicians (i.e. those practising in the medical specialty concerned with the recognition, prevention and control of the adverse effects of work on health and the effective management of the employment problems caused by ill-health),(15) they do come within its purview. But the imposition of the two aforementioned requirements were generally met by consternation and trepidation on the part of occupational health physicians in Britain.(16) It has been averred that they would introduce an unintended sequelae to occupational health and may even lead to the demise of the profession.(17) But, just how radical are those two obligations and what gave rise to such grave concerns on the part of occupational physicians?
In Section II of the work, we will examine the scope of the patient’s right to access medical reports prepared for employment, insurance or benefits purposes under the common law and statute. They will then be compared and contrasted with the provisions in the 2009 GMC Guidance. Through these, the discussion will highlight that while the two duties are not incongruent with the law, they nevertheless represent a radical departure from the prevailing legal expectations. They also stand in stark contrast to the practice in many other jurisdictions. Section III demonstrates the extent to which the provision regarding advance access could seriously threaten the autonomy and practice of occupational health service. Further, by exploring occupational physicians’ general duties in relation to the patient and the party commissioning the report, the work seeks to draw attention to the tension which this provision could give rise to when negotiating their dual obligations.(18) It will also show that the right to veto the release of the report is potentially injurious to the patient as well as other members of the public, thereby casting doubt on how far the Council has succeeded in meeting its mandate to protect the public interest via the 2009 Guidance. We conclude our discussion in Section IV by arguing that their wholesale retention is thereby unfavourable, and emphasise the need for alternative means of securing the rationale of “no surprises”.
II. The GMC Guidance 2009: How revolutionary was it?
Generally speaking, occupational health reports are the written output of any consultation with an occupational physician.(19) It includes reports requested by an employer or a third party like insurers, as well as reports generated after employees have self-referred to the occupational health service.(20) The contents of such reports are dependent on the reason of the occupational health consultation. They usually include practical advice on fitness for work, vocational placement, return to work after illness, ill-health retirement, work-related illness, reasonable adjustments that may be needed for an employee and the control of occupational hazards.(21) As the contents of these reports pertain to issues like employability, insurability and eligibility for social benefits and early pension release, it follows that they could have serious implications and repercussions for the individuals whom they relate to.(22) In this part of the work, we take a close look at the existing legal routes for access to medical reports and explore how far they apply to occupational health reports. For this, we will firstly examine the position under the common law, before revisiting the long ongoing debate on the applicability of the Access to Medical Reports Act 1988 to occupational physicians. We then investigate the position under the Data Protection Act 1998.(23) Through these, we aim to assess whether the 2009 Guidance simply replicates and re-emphasises the existing legal standards and expectations, in which case its strongest impact would be to clarify and confirm to occupational physicians a hitherto ambiguous position. Or, does it instead represent a fundamental deviation from the prevailing legal expectations in England and Wales and other jurisdictions? If so, this helps set the scene for a discussion in Section III of the problems and challenges which it brings to occupational medical service.
A. The Current Law
1. The Common Law
Under the common law, it has long been recognised that doctors owe their patients a duty to respect their confidences.(24) This places doctors under a duty to refrain from making voluntary disclosure to a third party of information gained in their professional relationship without the consent of patients.(25) Applying this to the preparation of medical reports, occupational physicians are therefore expected to seek the patient’s explicit consent to the disclosure of specified information which they obtained via examination of a patient or from existing records.(26) For this, the doctor is firstly expected to inform the patient of the nature of the assessment, what he plans to convey in the report, the purpose of the disclosure and who the intended recipient of the information is. Only if the patient gives his consent to these, can the doctor proceed with the process and the preparation of the report. Even then, the patient may withdraw his consent at any stage in the process, or withdraw or withhold his consent to the release of the report to the commissioning party.(27) The only exception would be situations where disclosure is decreed by law(28) or where there is an overriding public interest.(29) Outside of these strict confines, the individual would have legal recourse against a doctor who reveals confidential medical information to a third party without his consent.
Thus it can be seen that like the 2009 Guidance, the common law expects doctors to seek the consent of the individual before disclosing his information to employers, insurers and other related parties. The patient is also given the right to veto the disclosure. However, unlike the Guidance, the common law does not make it obligatory for doctors to show the report or a copy of the report to patients before sending it to the party which commissioned it. Rather, they are only expected to provide patients with general information regarding what they would disclose to the party commissioning the report. Hence by decreeing a direct requirement that patients should be able to access occupational health reports before these are sent off and a right to veto the report after seeing it, the requirements of the 2009 Guidance go somewhat further than the position under the common law. This would not be the first time, however, that the expectations outlined in GMC Guidances exceed the standards required by the common law. The GMC Guidance on Consent,(30) for instance, expects registered medical practitioners to explain the different treatment options available to the patients and for each of those options, to set out the potential benefits, risks, burdens and side effects.(31) Whereas in law, doctors are merely expected to inform patients of the broad nature of a proposed procedure(32) and the risks attending that very procedure.(33) Only the failure to disclose this lower level of information could attract legal liability compared to a failure to disclose the wider range of information expected in the GMC Guidance.(34) Likewise, its Guidance on Good Medical Practice states that in the doctor-patient transaction, practitioners would, inter alia, need to be polite, considerate and honest; and treat each patient with dignity and as an individual.(35) Whereas in law, they are only under a duty to exercise a reasonable standard of care to ensure that the patient does not suffer any injury from the care given.(36) The higher standards outlined in GMC Guidances in effect reflect efforts made by the Council in leading the profession on what it deems to be proper and ideal standards rather than to merely reflect the minimum threshold required to escape legal liability. For this, it is therefore not an issue in itself that the 2009 Guidance has gone beyond what is required under the common law. What is a matter of concern, however, is whether the new requirements typify good practice that represents the way forward for occupational health service. Before this question is addressed, we will firstly look at the position under statute.
2. Access to Medical Reports Act 1988
It will be noted that as far back as 1989,(37) the Access to Medical Reports Act 1988 has conferred individuals a statutory right to access medical reports relating to themselves as provided by medical practitioners for employment or insurance purposes.(38) The Act makes it obligatory for those commissioning such reports to seek the written consent of the individual beforehand. Importantly, it accords individuals the legal right to view such reports prior to dispatch, and the additional right to request the doctor to amend any parts which they consider to be incorrect or misleading.(39) Procedurally, the medical practitioner may either allow the individual to view a copy of the report or supply a copy to him, for which a fee is chargeable for making a copy. The individual is entitled to withhold or withdraw consent to the release of information.(40) A doctor may nevertheless refuse access to a report where disclosure would be likely to cause serious harm to the individual or others; would indicate the intentions of the doctor in respect of the individual; or where disclosure would reveal the identity of a third party.(41) The Act also recognises a retrospective right of access up to 6 months from the time the report was supplied, for individuals who did not view the reports prior to dispatch.(42) A remedy is provided for any breach, whereby the individual has a right to make an application to the court to obtain an order against a practitioner who has not complied with the dictates of the Act.(43)
In investigating whether these provisions already apply to occupational health reports, in which case the 2009 Guidance would be adding little that is new, it is important to understand the rationale behind its enactment as well as its exact parameters. Historically, the Act was introduced by Mr Archie Kirkwood MP as a private members Bill. It was triggered by the frequency with which general medical practitioners (GPs) in the 1970s and 1980s were commissioned to produce medical reports relating to individuals when they applied for jobs or insurance policies,(44) and partly in response to questions from employers and insurance companies inquiring about patients’ lifestyle since the onset of AIDS.(45) Unfortunately, inaccurate reports deriving from incorrect or misleading information recorded in individuals’ health care records such as subjective comments, had sometimes been provided and individuals had been prejudiced. The Act recognises the potential harm that could arise from such inaccurate information to the employment prospects of individuals or their attempts to secure insurance cover or a personal pension. By granting individuals the opportunity to inspect the reports before they are released, the Act therefore intends to ensure that any information made specifically for the purpose of employment or insurance would be accurate. Here, it is important to note that a “medical report” for purposes of the Act is defined by s2(1) as a report which relates to the physical or mental health of the individual prepared by a medical practitioner(46) who is or has been responsible for the clinical care of the individual.(47) Although this clearly covers reports made by the individual’s own GP, does the Act apply to reports prepared by occupational physicians? As to be seen below, this question has to date attracted conflicting and divergent viewpoints from the GMC and other bodies like the British Medical Association (BMA), the Faculty of Occupational Medicine (FOM) and the Department of Health.
The GMC has yet to produce any official guidance with respect to the application of the 1988 Act to the occupational medicine sector. However, when approached by individual occupational physicians, some were advised that they were correct to apply the Act only in certain situations, whilst others were advised that they should apply the Act to all consultations.(48) The BMA,(49) in the mean time, outlines three circumstances where the Act affects occupational physicians: where they provide clinical care to employees; where they have previously provided medical treatment or advice to employees in the context of a doctor/patient relationship; or where they act as employers’ agents and seek clinical information from an individual’s GP or consultant.(50) This highlights the BMA’s belief that the Act does not apply to occupational physicians where “clinical care” is not undertaken.(51) Regrettably it then shies away from further elaboration including the constitution of “clinical care”. The guidance issued by the FOM too was rather vague, stating that it is ultimately for occupational physicians to determine, on each occasion, whether or not previous activities amount to provision of care as defined by the legislation.(52) In May 2008, a group of consultant occupational physicians chaired by Professor Holland-Elliot produced a comprehensive guidance for occupational physicians on compliance with the Access to Medical Reports Act.(53) The guidance views that “the Act should not apply to occupational health reports in normal circumstances of occupational health practice”.(54) Although the FOM was of the view that the subject was important for occupational physicians, it chose not to endorse the document.(55) Just like the BMA, it shies away from providing definitive guidance on the Act. The Department of Health (DOH), on the other hand, was more decisive and specified that the Act only applies to reports prepared by medical practitioners who usually look after the clinical care of the person. Reports prepared by medical practitioners contracted by the employer or insurance company, are not covered by the Act.(56) That said, it has since withdrawn its views and redirects any enquiries to the guidance produced by the BMA.(57)
In the absence of a body of case law that could confirm the Act’s applicability to the occupational health sector, it is instructive to draw attention to the statement made by Mr Kirkwood MP in the House of Commons when the Bill was debated.(58) According to him, “the purpose of the Bill is to allow individuals access to medical reports that are made about them by their general practitioners when they apply for insurance policies or jobs.”(59) He further added that “[t]here was doubt about whether the Bill, as originally drafted, embraced other medical reports. I wish to make it clear that it does not.”(60) It can be surmised from this that it was never the intention of Parliament to make the Act apply to reports prepared by occupational physicians. This is augmented by the fact that occupational health providers are not ordinarily considered as being responsible for the clinical care of employees.(61) They are instead reporting on the health of the individual(62) and what they have is merely a casual, non-treating professional association with the individual(63) rather than an ordinary doctor-patient relationship.(64) It thereby follows that the Act does not apply to cases where the doctor preparing the report was nominated or employed by the individual’s employer solely for the purpose of making the report.(65) It thus excludes reports by an independent occupational physician carrying out pre-employment medical assessment, or a one-off insurance medical examination.(66)
However, since the Act defined “care” to include examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment;(67) such a wide definition opens up the possibility of it being applicable to some activities taken by occupational physicians, particularly those who are employed to advise both the employer and the employee about health and safety at work.(68) Thus it has been argued that where the occupational physician has taken actions like prescribing post-exposure prophylaxis, referring the individuals directly for counselling or psychotherapy, or engaging in a programme of vaccination of the workforce, emergency and first aid treatment, travel medicine services, or if following the detection of an undiagnosed medical condition, the patient is referred to his own doctor for treatment,(69) such acts can be caught by the notion of the patient having been “treated”. Where these are in turn deemed as the provision of clinical care to the individual, it is important to stress that while the Act may then be said to apply to any ensuing medical reports prepared by these occupational physicians,(70) this is purely an unintended consequence of the wording of the Act.
With the exception of these limited circumstances, it follows from the discussion thus far that prior to the 2009 GMC Confidentiality Guidance, patients do not have advance access to their occupational health reports. The specific duty introduced therein is thereby new and transformative. This being the case, the 2009 Guidance has the effect of clarifying the position of occupational health doctors that they too would now have to allow patients access to medical reports prepared for employment, insurance and similar purposes before the reports are sent off, and to then ask the patient if they expressly agree or disagree to their release.(71) But unlike the rationale of the 1988 Act which is to ensure the accuracy of medical reports, the rationale behind the right to access under the 2009 Guidance is to require doctors to show patients what information relating to them is going to be disclosed and how these are presented, so as to eliminate any untoward surprises. This right is available only before the report is sent, whereas the right under the 1988 Act is exercisable either before or after the report is dispatched. Furthermore, unlike the 1988 Act, it is not clear whether patients are conferred the right to request amendments.(72) This right of access is also not dependent on whether treatment has been given.(73) It applies to all medical reports prepared for employment, insurance or similar purposes by registered medical practitioners, including occupational physicians.(74) It is hereby submitted that the 2009 Guidance is sufficiently different from the 1988 Act so as to have a noticeable impact on the practice of occupational health. Before this issue is explored further, it is necessary to investigate the distinction between the 2009 Guidance and one other statutory route for access to medical reports namely the Data Protection Act 1998. This is because, individuals whose reports were prepared by medical practitioners who are contracted by employers and insurance companies (i.e. those not ordinarily covered by the 1988 Act), can currently access their reports under the Data Protection Act 1998.(75) However, the discussion below will show that access under this Act too is fundamentally different from the dictates of the 2009 Guidance.
3. Data Protection Act 1998
The Data Protection Act 1998 was passed to give effect to the European Directive on Personal Data and on the free movement of such data (Directive 95/46/EC).(76) It came into force on the 1st of March 2000. This Act has a far broader remit than the 1988 Act(77) and is not specific to the medical context. Section 7 of the Act confers a right on individuals (called “data subjects”) to access personal data held about them by data controllers. This is irrespective of whether these are held electronically or in manual form, or whether they were made before or after the Act comes into force. The rationale for this right to access is to enable individuals to check whether data processing unlawfully infringes their privacy and if so, to take actions to remedy the violation.(78) For purposes of the Act, personal data is defined by section 1(1) as data which relates to living individuals who can be identified from those data; or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual. In line with this definition, health information held within occupational health reports evidently qualify as “personal data” since they relate to living individuals and contain expressions of opinion or an indication of intentions relating to the individual.(79) As for who the data controller is in the occupational health context,(80) it has been opined that this is usually either the head of the Occupational Health department,(81) the employer(82) or the occupational health physician himself if he is self-employed.(83)
To access the information, the individual would have to submit a request in writing, pay a prescribed fee(84) and provide identifying information. The data controller would then allow him a copy of the document, presented in an intelligible form, within 40 days.(85) He must also be supplied with information on the purposes for which the data was processed, and the recipients or classes of recipients to whom the data may be disclosed.(86) The individual is entitled at any time by notice in writing to require the data controller to rectify, block, erase or destroy personal data which are inaccurate or incomplete.(87) They can also ask the data controller to stop processing the information if it causes substantial and unwarranted distress to the individual or others. Failure on the part of the data controller to make disclosure in accordance with the Act would entitle the individual or his representatives to request an assessment from the Information Commissioner as to whether personal data is being processed in conformity with the 1998 Act.(88) They can also apply to court for disclosure of the information.(89) But like the 1988 Act, access can be denied if it is likely to cause serious physical or mental harm to the patient or another person.(90) Likewise, access can be denied where it would disclose information relating to or provided by a third party who has not given consent to that disclosure.(91) Outside of these circumstances, whether or not the reports are accessible by the individual is dependent on whether the reports fall within certain other parameters detailed in the Act. These differ according to whether the report is computerised or prepared manually.
Occupational health reports produced electronically are accessible by virtue of section 7’s right of access to personal data by the data subject.(92) And since the Act applies to both data held for the purposes of the National Health Service (NHS) and the private sector,(93) it matters not whether the occupational practitioner was practising within the public or private sector. This also means that they apply to the information held by employers which relates to the physical or mental health of their employees if the record has been made by or on behalf of a health professional connected to the care of the employee.(94)
As for manually prepared (written) reports, they would only fall within the remit of the Data Protection Act 1998 if they form part of a “relevant filing system” or is an “accessible record”. According to s.1(1) of the Act, a “relevant filing system” is any set of information relating to individuals where the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily available. It seems clear from this definition that the crucial elements of a “relevant filing system” are the structuring by reference to individuals or the ready accessibility of specific information.(95) Thus it would cover a set of manual files where each alphabetically filed record relates to a specific individual and contains indexed information relating to the individual. It does not, however, cover situations where the information is kept in a single ring binder since this may not be a structured file.(96) Neither does an unstructured bundle of papers kept in boxes(97) or files(98) qualify. Likewise, it seems, if the information is kept in files which are arranged in date order or by reference to cases or issues rather than by reference to an individual.(99) To be caught by the Act, the manual documents must therefore be kept in files which are assembled and organised in such a way that it matches the sophistication of a computerised filing system in terms of its ready accessibility.(100)
If occupational health reports do not form part of a relevant filing system, they would only be accessible if they are recognised as an “accessible record” within section 68 as a “health record”.(101) In exploring whether occupational health reports fall within the definition of “health records”, it is worth noting that “medical report” itself was not a concept explicitly referred to in the Act. By contrast, special provision was made for “health records” under section 68(2) which the Act describes as any record which consists of information relating to the physical or mental health or condition of an individual, and has been made by or on behalf of a health professional in connection with the care of that individual.(102) It is here important to note that section 68(2) essentially repeats the terms of section 2(1) of the 1988 Act in that it excludes reports which were prepared by a doctor who has not previously treated the individual.(103) However, it is also more restrictive than section 2(1).(104) While the latter requires that the doctor preparing the report has or had “clinical care” of the individual, the former necessitates that the record had been prepared “in connection with the care” of the individual. Thus even a medical report prepared by the individual’s own GP is arguably outside the purview of such wording.(105) As previously discussed, most occupational health reports are arguably not prepared in connection with the care of the patient under examination in section 2(1) of the Access to Medical Reports 1988 Act. Here, they are even less likely to have been prepared in connection with the care of the individual as required by the Data Protection Act.(106) Hence an occupational health report may not be a health record within section 68(2) when it is prepared and supplied to a commissioning party.(107) A manually-prepared occupational health report would only fall within the remit of the 1998 Act, and is thereby accessible to patients, if it was added to the individual’s existing medical file or records.(108)
Therefore it can be seen that just like the 1988 Act, the application of the Data Protection Act 1998 to occupational health reports is far from clear and straightforward. Where it does apply (viz when such reports are accessible either because they were prepared electronically, or if manually-prepared, they were kept in a relevant filing system or were added to the individual’s existing medical file or records), it would appear that it is still fundamentally different from the 2009 GMC Guidance in terms of process, procedure and intent. Access is not an automatic right under the Data Protection Act. As observed earlier, a data controller is not required to provide the report unless he has received a written application and a prescribed fee;(109) whereas the individual’s right of access under the 2009 Guidance does not operate on a similar premise and access does not normally attract fees. Besides, the purpose behind the access requirement of the Data Protection Act is to provide the individual with the opportunity to ensure that his privacy has not been infringed, as contrasted to the 2009 Guidance’s rationale of “no surprises”. Most significantly in terms of sequence, the occupational health report would only be accessible after the report has been prepared and sent to its commissioner, rather than before the report is dispatched.
All these indicate that the existing legal mechanisms that enable individuals to access medical reports relating to themselves are fundamentally different from the 2009 Guidance. Be it the common law, the Access to Medical Reports Act 1988 or the Data Protection Act 1998, none had heretofore conferred individuals an automatic entitlement to inspect the actual copy of the occupational health report before it was sent out, and to allow them to veto its release after perusing the contents. In view of this, whilst the Guidance is not suggesting an action which is inconsistent or contrary to the law, it is revolutionary in its tone and essence.
B. Comparison with Other Jurisdictions
In so proceeding, the GMC appears to be the only professional body in the world that has introduced a new guidance that enables patients to gain privileged access to their occupational health reports in advance of the commissioning parties. It will be noted that although the Irish Medical Council also issued new medical ethics guidelines in 2009, these do not contain any requirement for occupational physicians to show occupational health reports to employees.(110) This position is also reflected in several Commonwealth realms. The Australasian Faculty of Occupational Medicine, for instance, requires only for its member to “discuss any disclosures of fitness for work assessment with the individual”.(111) In North America, the Canadian Medical Association simply specifies that doctors are to “disclose patients’ personal health information to third parties only with their consent; upon a patient’s request, provide the patient or a third party with a copy of his medical record.”(112)
This absence of patient’s right of advance access is also repeated in the United States. In April 2010, the Code of Ethics of the American College of Occupational and Environmental Medicine, the world’s largest medical society in promoting and protecting the health, safety, productivity and well-being of people at work,(113) representing over 6,000 physicians, does not accord the patient any right to view his report before it is sent. It merely states that: “occupational professionals should recognise that employers may be entitled to counsel about an individual’s medical work fitness; the health professionals, while respecting confidentiality, should report findings and observations of health effects in individuals to those in a position to respond to these observations, including employers.”(114) In Europe, emphasis is placed on maintaining the confidentiality of occupational health information and the necessity of securing the informed consent of employees prior to the release of information.(115) There is no requirement to show employees the reports before they are dispatched. In France, for instance, patients are only accorded the right to access their “medical files” which include consultation notes, investigations and correspondences between health care providers but they are not bestowed the right of advance access to medical reports.(116) Similarly, the International Commission on Occupational Health, the world’s leading international scientific society in occupational health with a membership of 2,000 professionals from 93 countries,(117) has simply stipulated that “general information on work fitness may be provided with the informed consent of the worker concerned”.(118) It does not impose any requirement on physicians to offer an employee any advance viewing of occupational health reports.
Hence by sanctioning a new “positive obligation” to show a copy of the occupational health report to the patients before it is sent and for the patient to then have the right to veto its release, the stance adopted by the GMC also stands in stark and striking contrast to that in many other jurisdictions. This gives rise to an important question: is the GMC pioneering a commendable route ahead for occupational health practice or is it instead treading a dangerous path? We turn to this question next.
III. Trail Blazing or Treading a Dangerous Path?
The foregoing discussion has shown that despite the existence of three legal avenues for individuals to be kept informed about occupational health reports relating to them, they are by and large different from the requirements laid down by the 2009 Guidance. As highlighted, the common law does not expect that the final draft of the report be shown to the patient and for consent for its release to be expressly obtained again after the report is read. Also, it does not appear that the Access to Medical Reports Act 1988 applies unequivocally to occupational health reports. Further, whilst the Data Protection Act 1998 allows access to such reports in specific circumstances, this would usually be after, rather than before, the reports are dispatched. That said, it seems clear that the access that is permitted and the circumstances which it recognises as exceptions which justify the withholding of access, as well as the right to veto its release after reading the report, are all inspired by the language and parameters used in existing laws. This is particularly more so with reference to the Access to Medical Reports Act 1988 which the 2009 Guidance appears to replicate and expand to now include the occupational health profession. A question that could be posed here is as to whether this specific inclusion of occupational health reports reflects the GMC’s view that the Access to Medical Reports Act 1988 does not apply to occupational physicians? In other words, it is arguable that the GMC would not have made specific reference to the profession in its 2009 Guidance had it interpreted that the Act applied to occupational health reports. But, is this necessarily a beneficial move for the profession and the public, or one that is potentially injurious? The discussion below will look firstly at the challenges and wider implications relating to the right of advance access to the report; and from there, the complexities associated with the right to veto its release after reading its contents.
A. Advance Access
The 2009 Guidance’s reference to advance access is accompanied by a number of uncertainties and challenges. Depending on how these are interpreted, they risk compromising the practice and autonomy of occupational physicians, as well as putting them in a difficult position as regards their duty to the patient on the one hand, and the commissioning party on the other. Of these, the gravest issue is whether the individual has a right to request amendment of any part of a report which he disagrees with, either because he considers it incorrect, misleading or potentially harmful to his employability/insurability etc. This is not specifically stipulated by the Guidance. Yet an entitlement to view an occupational health report without the right to request amendment essentially defeats the fundamental principle of an advance access to medical reports.(119) At the same time, a right to request amendment might erode the professional judgement and independence exercised by occupational physicians. Unlike the reports written by GPs for purposes of the 1988 Act, whereby these are largely only reporting on the patient’s health as derived from information within the patient’s medical records, occupational physicians carry out a highly specialised assessment of issues like fitness for work and workplace adjustment before writing their reports. If patients are permitted to request amendments or register his opinion to the report, this would usurp the role and autonomy of the occupational physician. The report would then be a joint product between patients and occupational physicians, rather than an impartial “occupational health” report.
Another major uncertainty is the absence of a clear time limit as to how long the patient has to view the report. Regrettably, the supplementary guidance does not specify any acceptable time interval other than to state that the report must be completed and sent without unreasonable delay.(120) In the presence of a time lacuna, it appears that there is no “one size fits all” period and a reasonable duration(121) is expected. This would in turn depend upon the nature of the physician’s practice; the views of patients; the mechanism for showing the report to the patient (which could be in person, electronically, by post and other means); the requirements of commissioning organisations; the method of communication; and a range of other factors. The thorny issue is that at present, there is no existing general consensus among occupational professionals with regard to what constitutes a reasonable period. Furthermore, what should an occupational physician do if an individual has not made any communications after viewing the report? Under the Access to Medical Reports Act 1988, medical practitioners can submit the report to the commissioning body if 21 days have elapsed.(122) Should occupational physicians similarly apply a 21-day window as prescribed by the Act which, as highlighted earlier, was where the 2009 Guidance has partially evolved from? Nonetheless, since the same time period is notably absent from the Guidance, the GMC must have taken the view that it does not amount to a “reasonable period”,(123) and this explains its omission from the Guidance. Deprived of a clear consensus, the overall question of how long a patient should be allowed to view a report remains unanswered.
On both the issue of whether to enter into a dialogue with the patient over what to include and exclude in the report and how these are presented; and the matter of how long to allow the patient to read the reports and what actions to take if they do not respond after the expiry of an unreasonably long period of time; the occupational physician is caught in a bind between their responsibility to the patient and their responsibility to the commissioning party. In relation to the first issue, they are under an obligation to the commissioning party to provide an impartial report which is the outcome of an assessment that employed their special training and knowledge. This therefore calls for restraint and non-compliance when patients attempt to influence them over what to include and how these are presented. As regards the second, they are under a time-sensitive service level agreement to provide the report which was contractually paid for by the commissioning clients.(124) This calls for prompt dispatch of the report which in the event of prolonged silence from patients, requires them to send the report to the third party without further delay. Indeed, the occupational physician would not currently be acting against the law if submitting the report at the expiry of 21 days or other periods deemed as reasonable.(125)
However, they also owe a duty to the patients which may call for a different, and at times contrasting, set of responses. But even here, there are ambiguities as to how this duty should be carried out. All registered medical practitioners are asked, when performing the duties laid down in GMC Guidances, to make the care of their patient their first concern.(126) They must also work in partnership with the patients and one important way by which this is fulfilled is by listening and responding to the patients’ concerns and preferences. As emphasised by the Council, these are put in place because patients must be able to trust their doctors with their lives and health. Some commentators have suggested that such a high level of trust at the heart of the doctor-patient relationship would subject the doctor to a fiduciary duty vis-a-vis the patient.(127) This requires them to serve the interests of the patient with a fidelity which exceeds the standards of the marketplace.(128) In line with this expectation from the Council, it is arguable that an occupational physician confronted with a request from a patient for some details or the presentation of the report to be amended, would be under an obligation to put his patient’s interest first by “taking his side”.(129) Plus, with the 2009 Guidance granting patients a right to veto a report which they are not fully satisfied with, this could put the occupational physician not only under an obligation, but also pressure to comply with their request for amendments, and present only information that would be favourable to and supportive of the patients and omit those which go against their wishes.(130)
Acting as a fiduciary(131) would also, in the case of the uncertain time limit, require the doctor to put the interest of his patient first. Here, since a prolonged delay may also have negative impacts on employees’ rehabilitation towards returning to work(132) and may result in a prolongation of absence from work which increases the risk of not returning to employment,(133) they may be under an obligation to release the report after the expiry of what is deemed as a reasonable period. On the other hand, given the reality of the majority of the occupational physician’s work (which usually involve referrals from employers asking for advice on the patient’s fitness for work or other health aspects which affect their attendance and performance) it is arguable that the fiduciary duty does not apply in this context.(134) The patient in the occupational health context is not expected to trust the occupational physician “with their lives and health” as in ordinary doctor-patient relationships.(135) Neither are they vulnerable to the same extent as patients in those relationships since patients in the occupational health context are often not ill.(136) Given this reality, the occupational physicians are expected to act with impartiality. Hence they should not be swayed by the patients’ request for amendment. However, while this coincides with their duty to the third party, it is not in full compliance with the fiduciary duty expected of them by the GMC in the observance of their guidances. It still remains unclear as to how they should act in relation to the uncertain time limits. As mentioned above, their duty to the employer would dictate a timely release, but if they were to dispatch the report without the patient’s consent, they would risk being disciplined by the GMC.
Without a consensus on what time period would be considered a reasonable period, occupational physicians are left in a difficult position when negotiating their dual obligations to patients and the third party.(137) All these therefore demonstrate that there appears to be a disparity between the expectations imbued in GMC Guidances (which assumes an ordinary doctor-patient relationship), with the reality of the occupational medicine context.(138)
In the face of these uncertainties, a commissioning party who objects to the possibility of a prolonged delay, or the uncertainty of whether or not they would receive a copy of the report, can explore an alternative route. Since the Guidance only applies to medical practitioners who are registered with the GMC, this means that occupational health nurses or other allied healthcare professionals such as ergonomists and counsellors are apparently not caught by the new requirement. Indeed, it is not contrary to the Guidance to delegate the writing of occupational health reports to “non-physicians”. This practice can be used to “bypass” the need to show patients an advance copy of their medical reports. Not only would this lead to variations and inconsistencies of practice, it is not inconceivable that commissioning parties who object to patients being shown the report beforehand, or one who objects to the delay or worried about not receiving a report at all,(139) would find it more attractive and convenient to request occupational health reports from non-physicians. This could, in time, decimate the need for the services of occupational health physicians, thereby affecting their livelihood.
B The Right to Veto Release
The right to withhold consent for the report to be supplied to the commissioning party is likewise not without its complications. For one, its exercise is not necessarily constructive to the patient himself. This is because, the third party would have to act on whatever information is available to them in the absence of the occupational health report. An employer, for instance, would be prevented from acting on recommendations regarding modifications or readjustments needed in the workplace which would allow the patient to remain at or return to work.(140) They would also be deprived of relevant information on whether the patient’s condition falls within the scope of the Equality Act 2010. Neither would its exercise be in the interest of other members of the public when, for example, the patient who is assessed as suffering from a condition which could lead to dismissal or early retirement, chooses to suppress the information by vetoing the report, thus endangering himself and others working with him or other members of the public. It would also be detrimental to the public when unemployment benefits may be incorrectly paid in the face of inaccurate or inadequate information.
The right would also introduce bias. A patient who has been assessed not to meet the medical criteria for an early pension release due to ill-health, for instance, could choose to veto its release on this particular occasion and seek a more favourable opinion from another doctor.(141) Likewise, a patient who disagrees that he suffers from depression or alcohol abuse, mental illness or other serious conditions could unilaterally veto the report. This could cultivate an unhealthy culture of “shopping around” until they find a doctor or health care practitioner who writes a favourable report.
Finally, the right could also offend the principles of medical ethics. In the scenario where the employee refused to disclose the report to his employer merely because he disagrees with the occupational physician’s opinion rather than any factual inaccuracies, it is disconcerting that simple facts can be unembellished by supposition or presumed motives.(142) In other words, there is now a biased suppression of professional opinion, which was formed in good faith. At the heart of modern day ethics, there is an ongoing dynamic balance and counter-balance between the principles of autonomy, beneficence, non-maleficence and justice.(143) There are on the one hand, the important ethical requirements of confidentiality of patient information, and of respect for autonomy. Autonomy gives rise to a requirement for consent. With the introduction of an unqualified right to veto occupational health reports, the principle of autonomy has undoubtedly been given supremacy over the other principles.
All in all, by allowing patients a right to veto the release of a report after having sight of its contents, this allows the suppression of important information and creates bias into the assessment process. As these could adversely affect the interests of other sectors of the public, as well as being potentially detrimental to the patients themselves, this suggests that the 2009 Guidance has not managed to meet section 35 of the Medical Act 1983’s mandate to protect, promote and maintain the health and safety of the public.
IV. Conclusion
The GMC’s endorsement of the patient’s advance access to occupational health reports and the right to then veto their release after reading their contents, is currently a highly controversial issue in the specialty of occupational medicine in the United Kingdom. As demonstrated above, whilst the language and design of these provisions are clearly inspired by the letter and spirit of the common law, the Access to Medical Reports Act 1988 and the Data Protection Act 1998, the Guidance represents a radical departure from these statutes. It has carved an unprecedented path ahead which is potentially injurious to the profession and its practice, the patient himself, the commissioning party and other members of the public. It also heightens the conflict between the occupational physician’s obligations to the patient and the third party.
Apart from lacking in details, the Guidance was, like all other GMC Guidances, drafted with the standard doctor-patient relationship in mind. As discussed, it is not clear whether individuals can request amendment of the report after viewing it. If acting as a fiduciary, as seems expected by the GMC, doctors are under an obligation to put the patient’s interest first. This, which demands that they do not have any conflicting allegiances that might affect their decision,(144) means having to comply with the request, thus risking usurping the professional autonomy of occupational physicians in the preparation of such reports and defeating the purpose of the assessment. However, the reality of the occupational medicine setting suggests that a fiduciary relationship is not called for – in which case, the report needs to remain impartial. Next, the absence of a clear time limit could lead to unnecessary delays in the dispatching of an occupational health report and difficulties in meeting time-sensitive service level agreements with the commissioning party. Again, depending on whether or not there is a fiduciary duty in place, the response, as discussed above, could be at variance. All these could put occupational physicians in an unenviable impasse situation, engulfed in a conflict of interests between the duty owed to the patient and the commissioning party. A commissioning party who objects to the possibility of delay and the uncertainty of whether they would ever receive the report may therefore find it more favourable to have such reports prepared by non-physicians such as occupational health nurses, ergonomists and counsellors since these professionals are not bound by the GMC Guidance.
Further, by allowing patients to veto the report after reading its contents, this could expose the patients to incorrect decisions being taken without the benefit of the report. The patients would then not be able to benefit from any potential adjustments or concessions that could be made by the third party. It also leads to the possibility of the suppression of important information which could have a detrimental effect on the patient’s fellow colleagues, employers, other agencies and members of the public. This would introduce bias into the process whereby a patient who is displeased with the contents could approach another occupational physician or health care professional in order to get a more favourable report.
The concerns outlined above, which we do not claim to be exhaustive, suggest that the 2009 GMC Guidance is not generally well-thought out. It injects many uncertainties into occupational health practice, which have the potential to threaten the autonomy, practice and professional relevance of occupational physicians. It was also drafted with the standard doctor-patient relationship in mind, thus not fully cognisant of the dual obligations confronting occupational physicians. Still, this is not the only concern, as the medical profession’s right to regulate itself depends on its retaining the public’s confidence that it will uphold the public interest through the guidances it issues. But with the possible complications resulting from the right to veto, it appears that the 2009 Guidance has fallen short of its public protection mandate. This work is not suggesting, however, that the rationale which prompted the two requirements is not important. Ensuring that there would be no untoward surprises is undeniably of value. Indeed, given the power disparity between the patient and the occupational physician,(145) and between the patient and the party who usually commissions these reports, as well as the serious implications attached to such reports, it could be helpful if the patient knows the contents of the report. It would allow them to identify factual errors which they could bring to the occupational physician’s attention (e.g. the duration that they have worked with the employer or how long they have suffered from a particular condition). But this notion of “no surprises” could be readily attained with a provision which stipulates that occupational physicians should dictate reports in the presence of patients. This practice has already been adopted by most physicians in the UK with no evidential objections from patients.(146) Instead of reinventing the wheel, this may be a more conducive way forward following a sustained dialogue between the GMC and the occupational health profession in addressing and resolving this pressing matter.
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(1) This body was established by the Medical Act 1858 and is currently regulated by the Medical Act 1983.
(2) GMC, ‘Confidentiality’ (2009). This came into force on 12 October 2009.
(3) GMC, ‘Confidentiality: Protecting and Providing Information’ (2004).
(4) I.e. on ‘Reporting Concerns About Patients to the Driver and Vehicle Licensing Agency (DVLA)’; ‘Disclosing Records for Financial and Administrative Purposes’; ‘Reporting Gunshot and Knife Wounds’; ‘Disclosing Information About Serious Communicable Diseases’; Disclosing Information for Insurance, Employment and Other Similar Purposes’; ‘Disclosing Information for Education and Training Purposes; and ‘Responding to Criticism in the Press’.
(5) GMC, ‘Supplementary Guidance on Confidentiality: Disclosing Information for Insurance, Employment and Similar Purposes’ (September 2009) paragraph 1. See also GMC (2009), supra note 2, paragraphs 34(d) and 33.
(6) They went further than the Guidance issued in 2004 where the GMC had merely required doctors to inform their patients about the purpose of the examination or report beforehand, and show the form on which the eventual report would be written so as to enable the patients to understand the scope of the information requested – see GMC (2004), supra note 3, paragraph 17; GMC, ‘Confidentiality: Protecting and Providing Information (2004): Frequently Asked Questions’, question 13.
(7) Faculty of Occupational Medicine (FOM), ‘General Medical Council Guidance on Confidentiality (2009) and Occupational Physicians: Frequently Asked Questions’ (17 February 2010) at 1.
(8) E.g. ‘Good Practice in Prescribing Medicines’ (2008); ‘Making and Using Visual and Audio Recordings of Patients’ (2011); ‘Treatment and Care Towards the End of Life’ (2010); Maintaining Boundaries’ (2006). For a full list, see GMC, ‘List of Ethical Guidance’ available at http://www.gmc-uk.org/guidance/ethical_guidance.asp.
(9) S.R. Cruess and R.L. Cruess, ‘The Medical Profession and Self-Regulation: A Current Challenge’ (2005) 7(4) Virtual Mentor; A. Fichter, ‘The Law of Doctoring: A Study of the Codification of Medical Professionalism’ (2009) 19(2) Health Matrix: Journal of Law-Medicine 317 at 319.
(10) M. Moran, The British Regulatory State: High Modernism and Hyper-Innovation (Oxford: Oxford University Press, 2003) at 79-83.
(11) GMC homepage, at http://www.gmc-uk.org/about/role.asp.
(12) Ibid. See also G. Samuel, ‘Governing the Professions: Does Self-Regulation Equal Self-Interest?’ (2000) 52(3) Institute of Public Affairs 18.
(13) Where they contradict the law, it is the law that prevails.
(14) See e.g. R (Burke) v. GMC [2005] 3 FCR 169.
(15) British Medical Association (BMA), ‘The Occupational Physician: Guidance for Specialists and Other Practising Occupational Health’ (February 2012).
(16) J. Tamin, ‘GMC Guidance on Confidentiality: Is It Ethical?’ (2010) 60(1) Occupational Medicine 6-8.
(17) Ibid.
(18) Other medical practitioners who are similarly confronted with the need to balance conflicting obligations to the patients and a third party include forensic physicians and doctors in the armed forces. For guidance on how these conflicts are to be managed in those contexts, see e.g. British Medical Association (BMA), ‘Health Care of Detainees in Police Station’ (2009) and BMA, ‘Ethical Decision-Making for Doctors in the Armed Forces: A Tool Kit’ (2012).
(19) Faculty of Occupational Medicine (FOM), ‘Ethics Guidance for Occupational Health Practice’ (2012) at 26; ‘Guidance on Ethics for Occupational Physicians’ (2006) at 10.
(20) Ibid.
(21) Faculty of Occupational Medicine, ‘Good Occupational Medical Practice’ (Aug 2010) at 4.
(22) See e.g. A. Clarke, ‘Sickness and the Law of Unfair Dismissal’ (1981) 3(5-6) Journal of Social Welfare Law 215; K. Wheat et. al, ‘Mental Illness and the Workplace: Conceal or Reveal?’ (2010) 103 Journal of the Royal Society of Medicine 83.
(23) Note that neither the 1988 nor the 1998 Act specifically refers to occupational physicians. A survey carried out on members of the Society of Occupational Medicine (SOM) showed widespread variation in occupational physicians’ understanding and practice relating to duties created under the 2 Acts – see L. Batty et. al, ‘Interpretation of Medical Information Acts by UK Occupational Physicians’ (2009) 59 Occupational Medicine 153.
(24) Stephens v. Avery [1988] Ch 449; A-G v. Guardian Newspaper Ltd (No 2) [1990] A.C. 109.
(25) Hunter v. Mann [1974] QB 767 at 772, per Boreham J.
(26) D. Kloss, Occupational Health Law (Oxford: Wiley-Blackwell, 2010) at 84.
(27) GMC Guidance on Confidentiality (2009), supra note 2; and Occupational Physicians: FAQ (Questions 7 and 9), 17 February 2010.
(28) See e.g. Road Traffic Act 1988; Terrorism Act 2000; Health Protection (Notification) Regulations 2010; Misuses of Drugs (Notification of Supply to Addicts) Regulations 1973 SI 1973/799; and Abortion Regulations 1991 SI 1991/499.
(29) W v. Egdell [1990] 1 All ER 835.
(30) GMC, ‘Consent: Doctors and Patients Making Decisions Together’ (2008).
(31) Paragraph 5(b) (emphasis added).
(32) Chatterton v. Gerson [1981] 1 All ER 257.
(33) Sidaway v. Bethlem Royal Hospital Governors [1984] 1 All ER 1018; Chester v. Afshar [2004] UKHL 41, [2005] 1 A.C. 134.
(34) S. Fovargue and J. Miola, ‘One Step Forward, Two Steps Back? The GMC, the Common Law and “Informed” Consent’ (2010) 36 Journal of Medical Ethics 494.
(35) Paragraph 21.
(36) Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118; Bolitho v. Hackney Health Authority [1998] AC 232.
(37) I.e. when the Access to Medical Reports Act 1988 came into force on the 1st of January 1989.
(38) The principle of patient access is nevertheless relatively new. Until two decades ago, individuals were neither entitled nor encouraged to access their health care information – see J. McHale and M. Fox, Health Care Law: Text and Materials (2nd edn, 2007) at 637-638; A.P. Ross, ‘The Case Against Showing Patients Their Records’ (1986) 292 British Medical Journal 578; D. Black, ‘Personal View’ (1985) 291 British Medical Journal 1718.
(39) Section 5 (2). If the doctor declines to do so, they may ask the doctor to attach to the report a statement which set out their own views.
(40) Section 3(2)(b).
(41) Section 7.
(42) Section 6.
(43) Section 8.
(44) See e.g. O’Brien v. Prudential Assurance Co Ltd [1979] IRLR.
(45) Anonymous, ‘BMA Supports Subject Access to Medical Reports’ (1988) 296 British Medical Journal 514.
(46) Defined as a person registered under the Medical Act 1983 – see section 2(1).
(47) Our emphasis.
(48) T. Hussain, ‘Editorial-Occupational Physicians and the Access to Medical Reports Act 1988’ (2005) 55 Occupational Medicine 413-414.
(49) This is the body which represents doctors in Britain.
(50) BMA (2012), supra note 15, at 18.
(51) Ibid.
(52) FOM, supra note 19 (emphasis added).
(53) K. Holland-Elliot, et. al. ‘Guidance for Occupational Physicians on compliance with the Access to Medical Reports Act’, available at http://www.facoccmed.ac.uk/library/docs/atmra_may08.pdf.
(54) Ibid.
(55) Faculty of Occupational Medicine, ‘Access to Medical Reports Act 1988: Foreword from the Faculty President May 2008’, available at http://www.facoccmed.ac.uk/library/docs/atmra_may08fwd.pdf.
(56) Department of Health, ‘Guidance for Access to Health Records Requests’ (2010) at 17; Department of Health, ‘Frequently Asked Questions about Accessing Health Records’, available at http://webarchive.nationalarchives.gov.uk/+/www.dh.gov.uk/en/Managingyourorganisation/Informationpolicy/Patientconfidentialityandcaldicottguardians/FAQ/DH_065886#_45.
(57) Department of Health, ‘Access to Medical Reports’, available at http://www.dh.gov.uk/en/Managingyourorganisation/Informationpolicy/Patientconfidentialityandcaldicottguardians/DH_4084411.
(58) Law Society Gazette. ‘Access to Medical Reports Act 1988: Implications for Practitioners’ (5th April 1989) available at http://www.lawgazette.co.uk/news/access-medical-reports-act-1988-implications-practitioners. Note that the Bill also secured support from the BMA and neutrality from the government – see G. Pitt, ‘Recent Legislation-Access to Medical Reports Act 1988’ (1988) 17 Industrial Law Journal 239 at 239-240.
(59) A. Kirkwood, Access to Medical Reports Bill; House of Commons Debate Hansard 8th July 1988 vol 136 col 1334 (our emphasis). He gave assurance that “the Bill will not increase the administrative or bureaucratic procedures that employers or insurance companies will have to face.”
(60) HC Deb 8 July 1988 vol 136 cc1335 (our emphasis).
(61) T. Aw, et. al., Pocket Consultant: Occupational Health (Oxford: Blackwell Publishing, 2007) at 330.
(62) G. Thornbory, Occupational Health 2008: Making the Business Case – Special Report (Cambridge: Workplace Law Publishing, 2008) at 24.
(63) J. Mason and G. Laurie, Law and Medical Ethics (London: Oxford University Press, 2011) at 201 (our emphasis).
(64) C. Foster and N. Peacock, Clinical Confidentiality (London: Monitor Press, 2000) at 59.
(65) S.D. Pattinson, Medical Law and Ethics (London: Sweet & Maxwell, 2009) at 230; B. Dimond, ‘Access to Medical Reports’ (2005) 14(6) British Journal of Nursing 860 at 860-861; Medical Protection Society, ‘Access to Medical Reports’ (2011).
(66) G. Howard, Employee Sickness and Fitness for Work: Successfully Dealing with the Legal System (London: Thorogood, 2002) at 23; D. Kloss, supra note 26, at 83.
(67) Section 2(1). Note, however, that the terms “responsible” and “clinical care” were not defined in the Act.
(68) C. Foster and N. Peacock, supra note 64, at 60.
(69) D. Kloss, supra note 26, at 85; K. Holland-Elliot, supra note 53. In the context of in-house occupational health services, it was established in Stokes v. Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 that “there is a legal duty to protect the health of all those in the workplace, even those who have never consulted the doctor [i.e. the on-site occupational physician].”
(70) T. Aw, supra note 61, at 330; G. Thornbory, supra note 62, at 24.
(71) J. Lewis and G. Thornbory (eds.), Employment Law and Occupational Health: A Practical Handbook (London: Blackwell Publishing, 2010) at 33.
(72) See discussion below.
(73) J. Lewis and G. Thornbory (eds.), supra note 71, at 42.
(74) Our emphasis.
(75) Department of Health, supra note 56 at 17.
(76) For further information on the historical background to the Act, see I.J. Lloyd, Information Technology Law (Oxford: Oxford University Press, 2008) at 29-33; C. Reed and J. Angel (eds.), Computer Law: The Law and Regulation of Information Technology (Oxford: Oxford University Press, 2007) at 459-472; P. Carey, Data Protection: A Practical Guide to UK and EU Law (Oxford: Oxford University Press, 2009) at 1-9.
(77) Its primary aim, as outlined in the Act’s preamble, is to regulate “the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information”.
(78) Durant v. Financial Services Authority [2003] EWCA Civ 1746, [2004] FSR 28; C. Reed and J. Angel (eds.), supra note 76 at 473.
(79) The requirement is satisfied even through a simple “fit or unfit” assessment or a note regarding the next recall date – see Occupational Health Solutions, ‘Data Protection Act 1998: Occupational Health Aspects’, available at http://www.occupationalhealth.co.uk/data_protection_act_1998.htm.
(80) The right of access under section 7 applies to both public and private data controllers. In the health care context, this therefore applies to records held for the purposes of the NHS; private practice records; and records held by employers which relate to the physical or mental health of their employees if these have been made by or on behalf of a health professional in connection with the care of the employee – see Department of Health, ‘Guidance for Access to Health Records Requests under the Data Protection Act 1998’ (2003) at 4.
(81) Kloss, D., supra note 26, at 88.
(82) Department of Health, supra note 80, at 4.
(83) S. Lloyd, ‘The Data Protection Act 1998 and the Occupational Physician’ (2001) 51(6) Occupational Medicine 414 at 414-415.
(84) As set by the Data Protection (Subject Access) Fees and Miscellaneous Provisions Regulations 2000, SI 2000/191, reg 6.
(85) Section 7(10).
(86) Section 7.
(87) Section 14. Where both parties agree to amend the record, the correction should be clearly displayed but the original must be left legible and an explanation be added for the correction. Where the data controller disagrees about the accuracy of the entry, the patient should be allowed to include a statement in the record stating that he/she disagrees with the content – see Department of Health, supra note 80, at 13.
(88) C. Reed and J. Angel (eds.), supra note 76, at 509.
(89) Section 7(9).
(90) Article 3(1) Data Protection (Subject Access Modification) (Health) Order 2000. See e.g. Roberts v. Nottinghamshire Healthcare NHS Trust [2008] EWHC 1934 (QB), [2009] FSR 4.
(91) Ibid.
(92) I. Kennedy and A. Grubb, Medical Law (London: Butterworths, 1992) at 1033.
(93) Department of Health, supra note 80, at 4.
(94) Ibid.
(95) P. Carey, supra note 76, at 21 (emphasis in original).
(96) Ibid.
(97) Smith v. Lloyds TSB Plc [2005] EWHC 246 (Ch).
(98) Durant v. Financial Services Authority [2003] EWCA Civ 1746, [2004] FSR 28.
(99) Ibid.
(100) Ibid., per Auld LJ.
(101) I. Kennedy and A. Grubb, supra note 92, at 1033.
(102) Our emphasis.
(103) I. Kennedy and A. Grubb, A., supra note 92, at 1033.
(104) Ibid.
(105) Ibid.
(106) For instance, if an employer or insurance company had commissioned the medical report for the purposes of an impending litigation, its preparation was quite clearly independent of the care of the individual, hence falling outside the definition of a “health record” – R. Morgan and R. Boardman, Data Protection Strategy: Implementing Data Protection Compliance (London: Sweet & Maxwell, 2003).
(107) I. Kennedy and A. Grubb, supra note 92, at 1033.
(108) Ibid.
(109) I.e. it would not “foist information on patients who have never sought it” – C. Dyer, ‘Data Protection Act and Medical Records’ (1985) 291 British Medical Journal 1070-1071.
(110) Irish Medical Council ‘Guide to Professional Conduct and Ethics for Registered Medical Practitioners’ (2009), available at http://www.medicalcouncil.ie.
(111) Australasian Faculty of Occupational Medicine, ‘Guidelines on Ethics and Professional Conduct for Occupational Physicians’ (September 1998) at 3.
(112) Canadian Medical Association, ‘Code of Ethics (updated 2004)’, paragraphs 35-37, available at hjttp://policybase.cma.ca/PolicyPDF/PD04-06.pdf.
(113) American College of Occupational and Environmental Medicine (ACOEM), ‘Position Statements’, available at http://www.http://ohr.psu.edu/occupational-medicine/Occ%20Med%20Confidentiality%20Form.pdf.
(114) American College of Occupational and Environmental Medicine, ‘Code of Ethics (approved by the ACOEM Board of Directors April 2010)’, available at http://www.acoem.org/codeofconduct.aspx and http://www.acoem.org/uploadedFiles/About_ACOEM/Code%20of%20Ethics%20-%20Condensed%20Version.pdf.
(115) WHO Regional Office for Europe, ‘Good Practice in Occupational Health Services: A Contribution to Workplace Health’ (2002), available at http://www.euro.who.int/__data/assets/pdf_file/0007/115486/E77650.pdf.
(116) See Art L.1111-7 Code of Public Health (France) paragraph 1.
(117) International Commission on Occupational Health, ‘About ICOH’, available at http://www.icohweb.org/site_new/ico_about.asp.
(118) International Commission on Occupation Health, ‘International Code of Ethics for Occupational Health Professionals (updated 2002)’, available at http://www.icohweb.org/core_docs/code_ethics.
(119) Although if the intention is to ensure that the individual is not caught by surprise when he/she communicates with his/her employer/insurer at a later stage, this may seem understandable.
(120) GMC, supra note 5, paragraph 8.
(121) GMC, ‘Good Medical Practice: Writing Reports and CVs, Giving Evidence and Signing Documents’ (paragraph 66), available at http://www.gmc-uk.org/guidance/good_medical_practice/probity_reports_and_cvs.asp; FOM, supra note 19 at 27.
(122) Section 5(2).
(123) Some private providers with multiple clients are working up to 3 days for electronic transfers and 5 days for postal transfers prior to dispatching the report – see Independent Occupational Health, available at http://www.indocc.co.uk. But, is 5 days a reasonable period for private practice? How about the public sector, notably the NHS?
(124) J. Tamin, supra note 16.
(125) They could, of course, be acting contrary to the 2009 Guidance, thus risking disciplinary action from the GMC.
(126) Guidance on Good Medical Practice (2006).
(127) See e.g. A. Grubb, ‘The Doctor as Fiduciary’ (1994) 47 Current Legal Problems 311 at 317; P. Bartlett, ‘Doctors as Fiduciaries: Equitable Regulation of the Doctor-Patient Relationship’ (1997) 5 Medical Law Review 193; M. Stauch, et. al., Text, Cases and Materials on Medical Law and Ethics (Oxford: Routledge, 2012) p. 36.
(128) Ibid.
(129) J. Tamin, ‘Models of Occupational Medicine Practice: An Approach to Understanding Moral Conflict in “Dual Obligation” Doctors’ (July 2012) Medicine, Health Care and Philosophy, DOI 10.1007/s11019-012-9426-4.
(130) Patient Information Advisory Group, ‘Response to GMC Confidentiality Guidance Consultation’ (29 February 2008) at 8.
(131) I.e. as one who is entrusted with the power to act for the benefit of another – see P.D. Jacobson, Strangers in the Night: Law and Medicine on the Managed Care Era (New York: Oxford University Press, 2002) at 223.
(132) T. O’Connell, ‘Letters to the Editor-GMC Guidance on Confidentiality’ (2010) 60 Occupational Medicine 315-316.
(133) Health and Safety Executive, ‘Working Together to Prevent Sickness Absence Becoming Job Loss. Practical Advice For Safety and Other Trade Union Representatives’, available at http://www.hse.gov.uk/pubns/web02.pdf.
(134) J. Tamin, supra note 129.
(135) Ibid.
(136) Ibid.
(137) A.F. Stern and S. Sperber, ‘Occupational Physicians’ Perceptions and Impact of 2009 Consent Guidelines’ (2012) 62(7) Occupational Medicine 560.
(138) J. Tamin, ‘Describing Occupational Medicine Practice to Establish a Basis for Ethics Guidance’ (2013) 63(3) Occupational Medicine 170.
(139) Yet, they are still expected to pay for the preparation of the report whether or not they receive a copy.
(140) T. O’Connell, supra note 132.
(141) J. Tamin, supra note 129.
(142) J. Tamin, supra note 16, at 6-7.
(143) T. Beauchamp and J. Childress, Principles of Biomedical Ethics (Oxford: Oxford University Press, 2012).
(144) P. D. Jacobson, supra note 131, at 226.
(145) H.N. Plomp and N. Ballast, ‘Trust and Vulnerability in Doctor-Patient Relations in Occupational Health’ (2010) 60 Occupational Medicine 261.
(146) M. Keegan, ‘GMC Standards and Ethics (email letter to Dr Coggon, FOM) copy of letter via personal communication from the Society of Occupational Medicine.