A review of confidentiality procedures at Durham County Council has ensured that legal and ethical standards are met and has helped employers to better understand the reasons for referrals to OH. It has led to an unexpected drop of 33% in non-attendance at OH appointments. Many of the procedures introduced could be adapted by other OH services in a range of environments.
The review was instituted in recognition of the increasingly high standard of ethical practice relating to confidentiality and consent expected of all clinical staff and, in particular, those not providing treatment services. There are many confidentiality and consent dilemmas in a local government occupational health service providing services to about 20,000 local government and related employees, particularly in the context of sickness absence assessments, which are undertaken by both nursing and medical staff.
However, practical steps can be taken to ensure OH professionals work within established ethical, professional and legal standards.
Confidentiality and consent issues are closely intertwined – after all, without adequate informed consent procedures how can employees be confident that they are complying with the limits on disclosure of information accrued by the OH service to employers?
Confidentiality issues can also affect the effectiveness of occupational health services, and the satisfaction of its stakeholders. An employee assessed by an OH professional may be uncertain as to the extent of subsequent disclosure; managers may be dissatisfied with the limited extent of disclosure in the OH report; and the employee’s physician may have concerns about the professional standards applied by the OH professional.
OH professionals need to ensure their practice remains within accepted professional, legal and ethical standards. Informed consent before OH intervention is pivotal in ensuring employees are satisfied that agreed boundaries of confidentiality are not crossed and their personal information will be handled appropriately, while agreeing the release of sufficient information to allow managers to address their legitimate interests in resolving workplace health issues.
Common dilemmas in day-to-day OH practice where such issues arise include pre-employment health clearance, sickness absence management, health surveillance, and drug and alcohol screening.
In 2002, Durham County Council’s OH service undertook an internal management review of effectiveness and efficiency. High levels of non-attendance for appointments with the OH service were confirmed by audit as were high levels of distress in some employees who had been referred, many of whom had been on sickness absence for some months before the OH health referral and had no contact with their managers during their absence, even to be informed of the intention to refer to the OH service.
The combination of these factors was felt to lead to impaired effectiveness of the OH service consultation and raised professional concerns about the extent to which employees referred to the service could be considered as providing informed consent for reports to be produced for their managers.
Durham OH service reviewed the relevant nursing and medical guidance on confidentiality and consent. This emphasised that both nursing and medical staff were expected to work to the same ethical standards in relation to confidentiality and consent.1 Consequently, the procedural changes introduced within the OH service were applied to all clinical staff.
The guidance highlighted the need for written consent from patients and clients where providing clinical care is not the primary purpose of the investigation or examination, and where there may be significant consequences for the patient’s or client’s employment.2 The nursing guidance recognises the legal validity of verbal consent but ‘strongly advises’ OH nurses to seek written consent.1 Further, the guidance emphasises the necessity to ensure that the employee understands what the consultation is for where clinical staff assess fitness for work.1,3,4,5
The OHS role in sickness absence management was reviewed and several amendments to procedures were made. The management of the sickness absence referral letter to the OH service was redrafted to reflect the legitimate areas of questioning by non-clinical managers of the OH service, as proposed by the British Medical Association.6
As a matter of good practice a section was included in the OH service referral for the manager to seek the signed agreement by the employee for referral to OH. Where this was not available (for instance, the manager had been in contact with the employee by telephone only) a statement by the manager to confirm verbal agreement had been obtained was accepted.
Before the review, employees newly referred to the OH service through the sickness absence process were sent an OH service appointment which included reassurance of the ‘independent, confidential and advisory nature’ of the service and gave details of parking arrangements, but offered no further information about the purpose of an appointment in relation to the sickness absence procedures.
A new information sheet was formulated for inclusion with the initial appointment letter for all employees newly referred through the sickness absence policy. This provided background information about what to expect and explained the role of the OH service in the management of sickness absence procedures consistent with professional and legal requirements, and included information about confidentiality, consent and the possible implications of non-attendance such as management decisions being made without the benefit of advice from the OH service.
As a pilot this information sheet was included in appointment letters to all social services employees newly referred through the sickness absence procedure to OH. No problems were noted in the interpretation of the information by employees, and it was therefore adopted for use with all council employees.
The employee information sheet was introduced at the same time as a process whereby all OH professionals would seek written consent from referred employees to proceed at the beginning of each new consultation, including seeking consent to write a report to the referring manager. On the reverse of this document was an explicit statement of the areas of advice that may be disclosed in letters to management, and to whom the letter may be copied.
Local government is characterised by widely varying occupational groups, different management structures and styles, and disparate geographical locations. For example, schools often operate in a similar fashion to small and medium-sized enterprises, buying in services such as HR and OH services through council departments affiliated to the local education authority. Social care and health managers, such as those supervising home care workers in the more remote areas, may work in relative isolation.
Managers may have little experience of managing sickness absence, although local policies require them to undertake the initial sickness absence management meetings without the benefit of HR assistance. Managers may also have a poor understanding of the role of OH referrals in such circumstances and, even though OH involvement is written into the sickness absence procedures, may be unable to accurately explain the purpose of such a referral to the employee with health problems.
While such circumstances indicate the need for improved management training, resource issues in local government could make this slow in coming while the need for OH service clinical staff to adhere to ethical standards of practice is immediate.
Nevertheless, only a member of clinical staff can seek and obtain informed consent from an employee as only they know the nature of the assessment they wish to undertake. Management referrals signed by the employee indicating a willingness to attend an OH service appointment, while indicating good management practice, do not constitute informed consent as the counselling has been undertaken by a third party (the manager), not the member of clinical staff undertaking the assessment. The approach we describe is not dependent on significant organisational commitment and can be effected by most OH services.
OH service clinical appointments are usually requested by managers as part of management of sickness absence procedures and other health programmes required as a condition of service, rather than the employee themselves. Although non-attendance represents a challenge to all health services, the unusual circumstances of OH service referral may make this problem greater for the OH service than other health services.
Non-attendance can lengthen waiting times and reduce the likelihood of an assessment being completed early in the period of absence when OH intervention may be more likely to have beneficial effects.
The introduction of the steps described led to a reduction in non attendance of 33% in the six months following introduction.7 No other significant organisational changes were undertaken during the study period. The unexpected outcome of closer adherence to our interpretation of professional and ethical standards was improvement in the efficiency of OH services by reducing non-attendance rates. This may also positively effect outcomes by permitting earlier intervention in staff absence.
The process of counselling and seeking written consent was found to take an average of two minutes at the beginning of each new clinical assessment. It has been found that prolonged discussions regarding confidentiality are rarely entered into, as the employee has been reassured by the Employee Information Sheet.
Following the introduction of the new process, clinical staff reported less uncertainty among referred employees than had previously been noted, when any information about the purpose of the referral was largely obtained through the manager. Of the several thousand staff seen under the new arrangements only three refused to provide consent after appropriate counselling.
Other benefits include a better understanding of the roles, responsibilities and ethical obligations of OH professionals by all stakeholders. The use of the consent process has also improved information flow between the OH service and the employees’ treating physicians, as recommended by the British Medical Association.6
Ethical and confidentiality standards change with time, hence our processes remain under review and additional initiatives have been instigated as a result. An OH internal code of conduct about confidentiality has been developed and is applicable to both clinical and non clinical staff.
Non clinical OH team members working in administration are now contractually obliged to sign a “medical confidentiality agreement”, which emphasises the principles of confidentiality and indicates the possible disciplinary action if breached, in accordance with Royal College of Nursing guidance.1
Administration staff are also required to seek consent from a member of clinical before they release any information from any individual’s OH medical records, including any copies of reports.
The OH service has designed a module which endeavours to reduce the potential for conflict between management and OH professionals by explaining the role and limitations of the OH service in sickness absence management. It also promotes an understanding of the ethical and legal boundaries in relation to confidentiality and consent issues within which we are expected to work.
This is part of an ongoing comprehensive training initiative undertaken by HR throughout the local authority to develop management skills in dealing with sickness absence issues. This training is multi-disciplinary involving HR, management, the OH service and appropriate unions.
The HR section includes training for managers in how to manage situations where employees decline to give consent for reports from the OH service, which also reduces the potential for conflict between management and the OH service. To date about 800 managers have received this training and the programme is ongoing.
In general, the feedback on all of the initiatives described is positive and they appear to be contributing towards a collaborative approach to ensure an effective use of the OH service within the limits of confidentiality.
Maggie Curry is lead occupational health nurse adviser and Philip A Wynn is senior OH physician at Durham County Council
1. Confidentiality – RCN guidance for occupational health nurses. Royal College of Nursing. RCN October 2003.
2. Code of Professional Practice. Nursing and Midwifery Council. April 2002.
3. Seeking patients’ consent: the ethical considerations relating to the duties and responsibilities of doctors. General Medical Council London 2001
4. Confidentiality. Medical Defence Union. London, January 2001.
5. Guidance on Ethics for Occupational Health Physicians. 5th Edition, Faculty of Occupational Medicine London, May 1999.
6. The Occupational Physician. British Medical Association. London, June 2001.
7. Wynn P. ‘The effect on attendance rates for sickness absence assessment of a revised employee information sheet’. Occupational Medicine. London. 2003 Feb;53(1):53-6.
Durham County Council employee information sheet
Q What is the Occupational Health Service?
A The OHS is an independent advisory service whose role is to provide impartial advice regarding fitness for work to line managers, who are responsible for the monitoring and control of sickness absence, and staff. This advice is aimed at assisting employees to regain their good health and return to a suitable job as soon as their recovery allows.
Q Why have I been referred?
A The [employer’s sickness absence procedures] requires managers to refer staff experiencing prolonged or frequent sickness absence, normally after the first management of sickness absence review meeting. Your manager should have discussed the purpose of the referral with you at this meeting. Normally an OHS appointment should lead to advice for the individual and their manager regarding the likely duration of sickness absence, the functional effects of ill health on work, and suggest rehabilitation approaches back into the workplace where appropriate.
Q What will happen when I arrive for my appointment?
A The occupational health nurse or doctor will introduce themselves to you and explain the purpose of the assessment. If a physical examination is likely to be desirable, such as for staff suffering from back pain, this will be explained. The doctor or nurse will then ask for your written consent to proceed with the assessment.
Q What will be said in the report to managers?
A While seeking your consent for assessment the areas that may be included in a report to managers will be discussed in detail. In general this may include likely duration of sickness absence, the day-to-day effect of any permanent or short-term disability and subsequent advice on restrictions to normal duties which may assist in maintaining your attendance or enable rehabilitation and an earlier return to work.
Q Who will see my Occupational Health records?
A The standards of confidentiality for records held by your GP also apply to occupational health records. Consequently neither your manager nor personnel staff have access to your records. Details of your records will only be released at your request or, in exceptional circumstances, as a legal or ethical requirement.
Q Can I have a copy of the report from occupational health to my manager?
A This will be sent to you automatically.
Q Will Occupational Health write to my GP/hospital specialist for information?
A If the nurse or doctor thinks a report would be useful the reasons for this will be discussed with you and a request made only with your informed written consent. Your right to read any such report will be explained to you at this time.
Q What if I have already returned to work or my GP has given me a date to return within the next few days?
A Contact your manager to discuss any ongoing need for an OH service appointment.
Q What if I do not feel able to attend an appointment in the OH service?
A If you feel unable to undergo the assessment you should inform your manager. Without the benefit of guidance from the OH service your managers may make decisions regarding your ongoing employment based on the information available to them. Alternatively the doctor or nurse will discuss any concerns you may have about the appointment on the day but will not proceed further without your consent.
Q What if I cannot make this particular appointment date?
A If you are unable to attend please inform your manager as early as possible in order that the appointment may be offered to another member of staff. At your manager’s request an appointment will be rescheduled for you.