Private but not necessarily confidential

Who has the right to see an occupational medical report and in what
circumstances? This is a vexed question on which HR and occupational health
departments do not always agree. Phil Allen clarifies the position

The underlying premise in all medical training is that a patient’s wishes
and confidence are paramount. The occupational health professional can find it
difficult to square this with his or her role as an adviser to the employer.
Whether an employee or applicant has the right to veto medical reports produced
by health practitioners is a question where the employer’s view often conflicts
with that of the occupational health department. As a result, doctors
frequently state their obligations of confidentiality to the individual, even
when this is not actually the legal position.

Many employers will have in place good practices, and obtaining written
consent prior to a medical examination is the best way to ensure you are within
your rights to demand a copy of the report. However, there still remains the
problems of obtaining it from occupational health professionals, whose views
may be more influenced by the traditional doctor-patient relationship than by
their role as employer advisers.

This problem can arise in any situation where occupational health advice is
necessary – a pre-employment health assessment, a health review following
periods of ill-health absence, as part of a personal injury claim or when an
employment tribunal is asked to decide if an individual has a disability under
the Disability Discrimination Act. Inevitably, where the medical conclusion is
not what the individual wishes, then it is not in their interest to consent to
its disclosure and the right of veto over the report can undermine the purpose
of seeking such advice.

Clear guidance on this point arose in the recent case of Kapadia v London
Borough of Lambeth. As part of the employment tribunal proceedings, the
employer had requested a report from a doctor on whether or not Kapadia had a
disability. At the outset of the hearing, the doctor refused to disclose his
medical report to the employer or the tribunal without the individual’s
consent, which he withheld. Accordingly, the tribunal reached a decision based
solely upon the evidence provided by the employee.

When the case reached the court of appeal on other issues, as part of his
decision Lord Justice Pill considered the refusal of consent. He pointed out
that the individual had consented to the examination, both in writing and
through his solicitors, and so the doctor should have disclosed the report to
the employers – no further consent was required. In other words, by consenting
to an examination on behalf of the employers, the individual was consenting to
the disclosure to the employers of the report that resulted from that
examination. Once consent was given, the individual did not have a further
right of veto on disclosure. As this was not the central issue being considered
by the court, the judge’s views do not represent a binding authority on lower
courts. However, the views of an appeal court judge are persuasive and may be
followed in other cases.

Seeking occupational health advice

Practical problems can arise where an occupational health physician is paid
by an employer to provide a report. Despite the view of medical professional
insurers, occupational health doctors are in a completely different position to
a doctor who is treating an individual and should therefore provide their
advice to the employer who has requested it.

This is consistent with the relevant legislation. The Access to Medical
Reports Act 1988 prevents a person from requesting a medical report for
employment purposes without the subject’s consent. However, a medical report is
defined as "a report prepared by a medical practitioner who is responsible
for the clinical care of the individual". In most employment cases,
occupational health physicians do not fall into this category.

The Access to Health Records Act 1990 gives individuals a right of access
and correction to their own health records which have "been made in
connection with the care of that individual". Again, occupational health
reports are unlikely to fall within this definition.

Clearly, the occupational health department is more able to advise if it has
notes from the individual’s GP and that information will be subject to the
requirements for consent and veto under the Acts. However, the advice of the
occupational health department is not itself subject to such restrictions.

Confidentiality – the employment appeal tribunal’s view

This issue was also recently explored by the EAT in the case of London
Borough of Hammersmith & Fulham v Farnsworth.

The council had asked Farnsworth, a successful applicant for a post as a
resident social worker, to see its occupational health physician, Dr Cooper,
before she started employment. She signed a consent form for a medical report
to be provided to the council. Concerned by Farnsworth’s history of depressive
illness, Cooper advised the council she was not fit for employment, based on
his view that she was likely to have significant periods of absence. Following
its usual policy on confidentiality, the council did not ask the reasons for
the advice but accepted Cooper’s recommendation and did not employ Farnsworth.

At the employment tribunal, Farnsworth’s claim for disability discrimination
was successful. Cooper was wrong to conclude her condition would result in
substantial absence, the tribunal held, because in recent years she had had
only limited absence from work. The council should have recruited her and then
monitored her performance and attendance.

On appeal, the council argued that it had not discriminated against
Farnsworth because it was unaware of her disability and had merely followed the
advice of Cooper, who was not its employee. This was rejected by the EAT who
held Cooper was clearly an agent of the council and was responsible for the
decision not to offer Farnsworth employment.

The EAT also rejected the council’s argument that the information was
confidential and stated that Cooper was not bound by any duty of confidence to
Farnsworth not to disclose details of her medical history to the council. They
stated the whole point of the medical examination was to enable the council to
reach a decision on whether to employ Farnsworth and it was, therefore,
necessary to provide the medical information. The information remained
confidential to Cooper and the council’s decision-makers and could not be used
without her consent for any purpose other than deciding on Farnsworth’s
suitability for employment.

The EAT pointed out that if the council had employed Farnsworth, this
information could be used in future decisions relating to her employment
without her further permission. The fact that both the medical health
questionnaire and consent form specifically stated that the information would
be given to the council, played some part in this reasoning. But the EAT said
that in any event, consent would have been implicit in attending the
examination. n

Confidentially, data protection and human rights

One issue which does not appear to have been considered by the EAT is the
position under the Data Protection Act 1998. This act treats medical
information held by employers in organised filing systems as sensitive personal
data. Before such data is processed, either the employee must give specific
written consent or the employer must show compliance with one of the conditions
specified in the Act.

An employee might therefore use the DPA to argue that agreeing to be
medically examined does not imply agreement to disclosure of the report to the
employer. This would appear to be supported by the emphasis in the Data
Protection Commissioner’s draft code of practice on "explicit
consent" and the statement that non-health professionals should only be
provided such information on a "need to know" basis.

In practice, employers could address this by ensuring that comprehensive
written consent is given by an employee prior to any medical examination taking
place. Alternatively, the employer could argue that disclosing the report in
tribunal proceedings, brought for example under the DDA, is a necessary legal
obligation. Either way, the employer will then meet one of the conditions that
permit the processing of sensitive personal data.

The Human Rights Act 1998 is also likely to be raised by employees who are
unhappy about medical advice. The right to respect for private life conferred
by article 8 of the European Convention of Human Rights may have some
application in this area. However it is hard to see how an employee can argue
that their human rights have been infringed if they have attended an
occupational health assessment. The right may have more application if an
employee is dismissed for refusing to agree to an assessment, but even then it
will be subject to the balance of competing rights, which restricts the
application of the HRA in practice.

Phil Allen is a solicitor in the employment department of Beachcroft
Wansbroughs

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