Expert advice

Nobody’s perfect but if you act as an expert you must
exhibit the best possible standard of care. 
Here are the issues and some practical advice.  By Gillian Howard

 

Several recent cases concerning the Disability
Discrimination Act 1995 have highlighted the distinct and specific role of the
OH expert and have clarified where the expert’s evidence should start and
finish.

 

Anyone holding them selves out as an "expert" is
expected to operate to the highest standard of care as practised by the very
best in that profession.

 

This article looks at these issues and offers some advice
for OH staff when operating in what might be a litigious matter.

 

Level of expertise

 

The common law has always made it clear that no one, however
eminent in their field, is expected to be perfect. In one case the Court of
Appeal stated that "The law does not require of a professional man that he
be a paragon combining the qualities of a polymath and prophet".

 

The standard of care

 

When it comes to the standard of care expected, the normal
rule is that a doctor or nurse will be judged by the same standards as those of
a reasonably competent member of that profession.

 

In other words, a doctor or nurse will be held to be
negligent if he or she has failed "to exercise the ordinary skill of a
doctor (in the appropriate speciality, if he be a specialist)".

 

What is negligence?

 

Negligence is established when the doctor or nurse’s act or
omission (or advice) falls below that expected of a person of that level of
expertise, and that act or omission has caused physical, mental and/or financial
damage to a patient or employer.

 

As far as employers are concerned, it is imperative that an
OH physician or nurse keeps up to date with the relevant employment legislation
and case law so that they are in a position to advise accordingly.

 

The courts as a general rule still use the famous Bolam test
(Bolam v Friern Hospital Management Committee, 1957, 1 WLR 582) to determine
the question of negligence.

 

"A professional man (or woman) is not guilty of
negligence if he (she) has acted in accordance with a practice accepted as
proper by a responsible body of medical men (women) skilled in that particular
art. Putting it the other way around, a man (woman) is not negligent, if he
(she) is acting in accordance with such a practice, merely because there is a
body of opinion which would take a contrary view."

 

The courts have in the past taken the view of the medical
expert as to what standard can be expected of a specialist in that particular
field. Before the Woolf reforms (of the civil courts and procedure), medical
experts appointed by both parties would fight it out in court – entreating the
judge to accept one opinion rather than the other. Following the Woolf reforms,
it is expected that the parties will agree a joint expert and that the court
will not be asked to accept one expert view rather than another.

 

The Bolitho decision

 

However, now the courts are taking a slightly different view
of experts. In the case of Bolitho v City and Hackney Health Authority, 1997, 3
WLR 1151, the House of Lords held that in most cases where distinguished
experts in the field were of a particular opinion, that would be a
demonstration of the reasonableness of that opinion. However, there may be
cases where the court was not satisfied with this evidence.

 

The court had to be satisfied that the exponents of a body
of professional opinion relied upon had demonstrated that such opinion had a
logical basis and in particular had directed their minds, where appropriate, to
the question of comparative risks and benefits to reach a defensible
conclusion.

 

If, in a rare case, it had been demonstrated that the
professional opinion was incapable of withstanding logical analysis, the judge
was entitled to hold that it could not provide the benchmark by reference to
which the doctor’s conduct fell to be assessed.

 

In those cases the courts would take careful note of any
published guidelines of clinical governance as a guide to whether or not a
negligent practice had been adopted.

 

What do you need to be?

 

Anyone who calls them selves an "OH
physician/adviser" would be expected to be qualified in that field. In
other words, OH physicians should at the very least have gained the Diploma in
Occupational Medicine from the Faculty of Occupational Medicine. Such
physicians should also ensure that they are kept up to date by attending
seminars on the latest case law and legal developments in the occupational
health field and perhaps then move on to take the Membership or Fellowship
examinations.

 

OH nurses should be qualified with the appropriate relevant
credentials in occupational health issued by the RCN or UKCC. Again training
and re-training is essential during the course of employment.

 

For both OH physicians and nurses, the need to have an
up-to-date library and subscriptions to relevant materials in employment law
and occupational health  is essential as
well as regularly attending training sessions and seminars.

 

The role of OH physicians and nurses

 

Part of the role of the OH physician or nurse is to advise
management accordingly when presented with employees who have chronic or
long-term illness or injury; potential disability issues and the need for
adjustments at their workplace; possible long-term disability claims; and
employees who remain at work who may have mental health problems or alcohol or
drug addiction problems.

 

Disability and discrimination

 

Several cases have now established what the role of the OH
physician is and what he or she is or is not expected to comment upon. Two
recent cases both involve the same employer and the same OH physician.

 

In the first of these cases – Vicary v British Telecommunications,
1999, IRLR 680 – the Employment Appeal Tribunal made it clear that it was not
for the OH physician to express an opinion as to what is or is not a normal
day-to-day activity nor was it her duty to tell the tribunal whether the
impairments were or were not substantial. Those are matters for the employment
tribunal to arrive at its own assessment.

 

The Regional Medical Officer Dr Macaulay was described by
the employment tribunal as "an impressive witness". She had a special
qualification in occupational medicine and had attended a number of courses on
the Disability Discrimination Act 1995 and its application in the employment
field.

 

During the course of her evidence, she gave her opinion on
whether the applicant’s impairment could be regarded as "substantial"
under the terms of the Disability Discrimination Act 1995. The employment
tribunal accepted her evidence as if she were an "expert" giving
evidence in the High Court. This was wrong!

 

The EAT criticised the employment tribunal for its approach
and made this statement about seminars and courses: "…the fact that the
medical adviser had been told on some disability discrimination course or
seminar that something was or was not a normal day-to-day activity is not of
relevance to the tribunal’s determination. It is not for a doctor to express an
opinion as to what is a normal day-to-day activity. That is a matter for [the
employment tribunal] to consider using their common sense."

 

"Nor is it", held the EAT, "for the medical
expert to tell the tribunal whether the impairments which had been found proved
were or were not substantial. These are matters for the Employment Tribunal to
arrive at its own assessment"

 

Two years later and with the same Dr Macaulay giving
evidence in the tribunal, the EAT reminded her again of her role in disability
discrimination cases – Abadeh v British Telecommunications, 2001, IRLR 23. It
held: "It is not the task of the medical expert to tell the tribunal
whether an impairment was or was not substantial. That is a question which the
tribunal itself has to answer. The medical report should deal with the doctor’s
diagnosis of the impairment, the doctor’s observations of the employee carrying
out day-to-day activities and the ease with which he was able to perform those
functions, together with any relevant opinion as to the prognosis and the
effect of any medication."

 

The EAT held that the employment tribunal had been
over-influenced by the employer’s regional medical officer’s opinion of whether
or not the impairments were "substantial" under the Act and in effect
adopted her assessment instead of making their own.

 

In other words, it is not the role of the OH physician to
tell the tribunal whether an impairment was or was not "substantial".
This was the role of the tribunal and the question that it had to answer – a
case of deja vu for the OH physician!

 

Gillian Howard is an employment lawyer and consultant with
London law firm Howard & Howard

 

Some practical advice

 

If you are asked for advice on a sickness, absence, pension
or PHI matter.

 

– Have a copy of the up-to-date sick pay/early retirement,
long-term disability scheme or policy so you know exactly what the rules for
eligibility are and what your role is.

 

– Stick to your remit and do not overstep your proper and
designated role.

 

– Take advice from colleagues, your professional body or
defence union if you are unsure of what advice to give.

 

– Don’t feel threatened or intimidated by either the
employee – in rare cases doctors and nurses have been threatened with physical
or oral abuse from disgruntled employees – or by the employer; in some cases it
is sensible to have a chaperone present and a tape recorder so that you can
dictate your observations during the course of the examination.

 

– Re-read the scheme to ensure that the employee is given
all his/her rights.

 

I am currently advising an employer who refused to allow an
appeal from a refusal to give a long-term disability pension – only to find
upon reading the scheme that employees have the right of appeal with a new
independent consultant, if they do not accept the original decision!

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