A matter of confidentiality

What is the position of an
occupational health nurse when presented with anecdotal evidence that an
employee failed to declare a chronic health problem at the time of her
employment? Where does her duty lie? Readers provide the answer

Q  Last month we asked what readers would do
when faced with the following problem: I am currently employed as an
occupational health nurse within a financial institution.

Recently, a line
manager approached me expressing concern regarding an employee on whom I had
recently carried out a pre-employment health assessment (by questionnaire) as
being fit for employment.

The employee has been
in post for almost five months and during this time has demonstrated a regular
pattern of short-term absence totalling five episodes of nine days with a
diagnosis of back pain.

The manager has been
informed, in confidence, that the employee has told her work colleagues that
she has a chronic back problem which caused some problems in her previous
employment, although she did not disclose it on her health questionnaire in
fear of not being appointed to the post.

The manager has asked
me to disclose whether or not the employee declared her chronic back problem in
her per-employment health questionnaire.

What should I do?
Should I disclose what the employee declared on the health questionnaire?

A
 A number of questions should be asked: if the
individual was interviewed and she identified that she withheld this
information deliberately to enhance the possibility of getting the job, the
organisation needs to consider whether this is gross misconduct. I would
suggest that the honesty of an individual working in a financial organisation
is paramount.

This is, however, a
managerial decision not an occupational health one. Had the person identified
the problem at pre-employment, would it have made a material difference to the
outcome of the assessment? Under the DDA, reasonable adaptations to the working
environment should have been made to prevent this problem from being
exacerbated by the individual’s work.

Has the problem caused
significant sickness absence in the past that would indicate the probability of
continued sickness absence in the future? Could the organisation make the
"reasonable adaptation" of allowing the individual to continue with
the same level of absence? Kloss (1998, p98) states that "If an employee
lies in answer to such questions the employer may, on discovery of the truth,
dismiss him, but only if the employer can show that he would not have employed
him had he known the truth and that this would have been a reasonable response
because of the nature of the disability and the nature of the job"
(Occupational Health Law 3rd Ed: Blackwell Science).

A recent Employment
Appeal Tribunal (London Borough of Hammersmith & Fulham v Farnsworth)
report in Employment Focus (Nov 2000, Issue 9 pp 5-6) states that the
information gained by an occupational health consultant was not confidential
and he or she was not bound by any duty of confidence to the patient not to
disclose details of the medical history to the employer.

It is understood
though, that the fact that both the medical questionnaire and the consent form
specifically stated that the information would be given to the council and not
simply to the doctor, played some part in the decision. It is, however, a moot
point as the Faculty of Occupational Medicine’s Guidance on Ethics for
Occupational Physicians (May 1999) states that "the individual
occupational health record is a confidential medical record to which the
priniciples of medical confidentiality apply". This is a view echoed by
the UKCC in the Code of Professional Conduct (1992) and the Standards for
Records and Record Keeping (1993).

If I received a
management letter requesting information from the pre-employment health
declaration I would interview the person, determine whether the hearsay is true
and seek informed consent to disclose the information management sought.

It would be your
responsibility to point out to the individual what the likely response of
management would be (possible dismissal) if there has been a failure to
disclose information as well as that "the employee who is invited to
submit medical evidence on his own behalf, and refuses, cannot complain if a
decision is made on evidence which is available". (Kloss 1998, p 233). if
the individual, having disclosed the information, would still have been
employed with adaptations, I would inform management that that would have been
the case and remind them of responsibilities under the DDA that any
recommendations that may assist in the reduction of the sickness absence
problem could also be included in the report back to management.

Amanda Dowson
RGN DPS(OH)
BA(Hons)
Health services manager Bradford College

A 
I was in a very similar situation in one of my previous posts, where due
to the fear of not being employed a member of staff did not disclose that he
had a severe back problem resulting from a road traffic accident seven years
previously, that gave intermittent severe problems.

After a period of
approximately six months’ employment, he was absent for several months due to
back pain. Management requested more medical information about the problem, and
after discussion with the company medical officer, a GP’s report was obtained.
The RTA incident was mentioned by the GP, and the employee was subsequently
dismissed for falsifying information on the health questionnaire.

The employee also put
management in the position of placing him in an unsuitable job, thereby making
the company liable to prosecution. Since this incident I have incorporated a
declaration on every pre-employment health questionnaire stating, "the
foregoing particulars and information given by me on the above questionnaire
are to the best of my knowledge true, and that any deliberate falsification
could result in disciplinary action or my dismissal. I agree to undergo a
medical as deemed necessary, etc., etc." which is pointed out before
signing, thereby giving the individual a chance to discuss any medical problems.

After all, it does not
mean that a person is unemployable just because of a particular health problem,
only that they may be required to refrain from certain aspects of a job for
health and safety reasons. Employers have a duty of care to all employees, as
an employee has the same amount of care for themselves.

In this instance I
feel the employee in question has not protected herself or the employer. In my
opinion, therefore, management could be told that the employee did not disclose
any information regarding a back problem on the health questionnaire, without
breaching confidentiality. By stating the problem was not mentioned is not, in
effect, divulging any medical information.

The reason for health
questionnaires is to establish a person’s fitness for employment in the first
place. Unfortunately, we (occupational health nurses) become placed in
situations like this more often than is acceptable, and it is a very difficult
to maintain confidentiality and protect both employee and employer. Most of all
we must protect ourselves, by keeping up to date with employment law and
regulations.

Sylvia Fitzpatrick
via e-mail

A 
Pre-employment assessment is a managerial/personnel issue arising from a
failure to ascertain the applicant’s previous sickness absence record and the
applicant’s lack of honesty in completing the form. The OH nurse should only
reiterate the original information she gave that "according to the
pre-employment questionnaire the applicant is fit for employment".

This tells the manager
everything she needs to know without breaching confidentiality.

If the employee’s
services are retained, then the OH nurse should concentrate on adapting the
working conditions and environment and giving the employee support and
encouragement so that she copes with her condition and keeps absence to a
minimum.

Anne Bartlett
Health &
Safety OfficerSouthampton University Hospitals NHS Trust

A 
The majority of health questionnaires carry a health declaration that
the employee is required to sign that states that if an employee withholds
information regarding their health then their contract may be subject to
termination.I had a similar problem while working for an NHS Trust when a nurse
did not disclose a chronic back injury on her pre-placement questionnaire.

We had a departmental
procedure that stated that all nursing applicants would be seen by an
occupational physician prior to being passed fit if they had a previous history
of back pain. I informed the manager that all nursing applicants with a history
of back pain were seen, without exception, prior to fitness, and that the nurse
in question had only been paper screened. I believe that this gave her
sufficient information to manage the situation without breaching the client’s
confidentiality as I did not actually disclose anything that was on the health
questionnaire.

Jeremy R F Smith
RGN AIIRSM BSc
Hons (OHN)
Occupational Health Advisor – Dover Harbour Board

A
 I would not disclose what the employee had
declared on her health questionnaire as this is confidential information.
However, I would recommend that the manager discusses the employee’s sickness
absence with her and if the employee still does not disclose her back problem
then the manager should advise the employee that she will be referred to
occupational health for advice on sickness absence and for any support that we
might be able to give.

Once the employee has
been referred to occupational health I would assure her that we are here to
help her and not to lose her her job. This, from experience, will usually
result in a confession. If the confession is gained then I would encourage the
employee to inform her manager.  

I would not inform her
manager myself as it would be breaking confidentiality which would result in a
lack of trust and might blacken the department’s reputation. I would however,
with the employee’s consent, be happy to inform the manager for her or with her.

Finally, without
dwelling on the past I would make clear the seriousness of the employee not
declaring a health problem on the questionnaire and assure her that because she
has a back problem this does not prevent her from being employed.

If done in this way
the department would then be seen as being a confidential service and
supportive to both employee and management.

Julie Davis
Senior Nurse
Adviser , Occupational Health, Hereford Hospitals NHS Trust

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