OH nurses have a duty of confidence to their clients, a fact that is not
always understood by employers. A clear
understanding of the OHN’s professional and legal requirements will help to
avoid potential conflict. By Dorothy Ferguson
Requests to disclose information that occupational health staff consider to
be confidential can be a source of conflict between the OH nurse and HR staff,
managers and employers. Clear understanding of the OHN’s professional and legal
requirements can help ease this conflict.
One of the ‘professional dilemmas’ published recently in Occupational
Health1, and contents of the responses to it, addressed an issue faced by many
occupational health staff in their practice.
Managers, HR personnel and, in some situations, employers, may ask the OHN
to reveal information that is confidential in the OHN’s professional opinion.
OHNs may feel caught between the employer and employee. They may also be concerned
that refusing to comply with the instructions of their own manager or employer
may be thought to be a breach of contract of employment.
Dimond2 acknowledges this problem but suggests it is unreasonable for an
employer to seek confidential information without lawful justification.
This article presents a summary of the professional and legal requirements
placed on the OHN to respect confidentiality. If this information is made
available to managers, HR personnel or employers, it may help inform them of
the OHN’s position and thus help to ease the conflict.
Definitions
It is essential to ensure that all those involved in a debate on
confidentiality have a clear and shared understanding of the term. Professional
education may have impacted on the OHN, leading to a more developed and
specific interpretation of the concept than that understood by others. One
dictionary defines to confide as "to trust wholly or have faith; to impart
secrets to someone as confidence; to tell with reliance on secrecy".
Confidence is defined as "firm trust or belief; faith; trust in
secrecy". Confident is defined as "trusting firmly" and
confidential as "given in confidence"3.
Basic dictionary definitions, therefore, immediately demonstrate the
requirement for trust, faith and reliance on secrecy in the context of
confidentiality and may help inform those who seek information from the OHN.
The need for trust is emphasised by Cox4 who claims that it is an essential
component of the relationship between client and healthcare professional.
Whitaker and Baranski5 suggest that the trust society has placed in nurses
enables clients to communicate freely with the OHN, thus enhancing practice.
Both the profession and the law require that OHNs respect that trust and
observe confidentiality.
The professional duty of confidence
The duty of confidence required of the OHN stems, to an extent, from
professional guidelines6-8. The principle of respect for confidentiality,
outlined in the UKCC Code of Conduct6, Guidelines for Professional Practice7
and Guidelines for Record Keeping9, has been retained in the new Nursing and
Midwifery Council’s Code of Professional Conduct8.
These documents clearly state that registered nurses are personally
accountable for their actions and stress the need to respect the
confidentiality of information that is gathered in the course of professional
practice. The profession requires that information must only be used for the
purpose for which it is obtained6-8. The need to obtain the client’s consent
before disclosing information is also clearly and consistently stated.
Section 10 of the 1992 UKCC6 states that disclosures can only be made with the
client’s consent, where required by law, or in the wider public interest. In
1996 the UKCC’s Guidelines for Professional Practice7 stated, in paragraph 51,
that clients had "the right to believe" that nurses would not release
information to other people without their permission. Paragraph 52 adds that a
client "must know who information would be shared with".
The more recent statement by the NMC8 appears less rigid, stating that the
nurse must make sure the client knows there may be a need to share information
with "other members of the team involved in the delivery of care".
This, it proposes, is because it is "impractical to obtain consent every
time you need to share information with others".
The NMC then would seem to suggest that information may be shared with
colleagues in healthcare, as long as the client has been informed this may
occur. The need to respect confidentiality within that context is stressed.
Sharing information outside the team is addressed in section 5.3, where the NMC
states that consent must be obtained before any disclosure is made8.
The exceptions remain, as before – those justified in the public interest or
required by process of law.
In the context of occupational health, the new code allows the sharing of
information within the context of "the team involved in delivering
healthcare". Some OH departments may need to clarify and agree whom they
consider are the members of such a ‘team’.
Documenting when clients have been informed and obtaining the client’s
written consent may be advisable.
The new code reinforces the professional requirement to obtain consent
before any information is passed beyond the team, which emphasises the need for
such permission before any information can be passed to managers, HR or
employers. The importance Hodges10 and Cox et al11 place on obtaining written
consent before disclosing health information to a third party should be noted
in this context.
There is, then, a professional requirement to respect client
confidentiality. The client should know whether there is any likelihood that
information may be shared within the team context, and it is proposed that the
client should consent to this. Before any information is shared beyond the OH
team, the client’s consent must be obtained.
Managers, HR personnel and employers may not be aware of the professional
obligations under which the OHN works. While an explanation of the duty of
confidence from the professional perspective may contribute to their
understanding, the legal perspective must also be made clear.
The legal duty of confidence
The duty that the profession places on the nurse to respect the
confidentiality of clients is reinforced by the law. Dimond2 states that common
law recognises the duty of confidentiality as part of the trust obligation
between the health professional and client. Kloss12 and Cox4 note the
similarity between the law and the professional guidelines in respect of the
duty of confidence.
Howard13 cites the following definition of duty of confidence, from an
Employment Appeal Tribunal (London Borough of Hammersmith & Fulham and Anor
v Farnsworth, 2000, IRLR 691): "A duty of confidence is one which prevents
the holder of confidential information from using or disclosing the information
for purposes other than those for which it has been provided, without the
consent of the person to whom the duty of confidence is owed." Recent
legislation such as the Data Protection Act 1998 and the Human Rights Act 1998,
has further strengthened the client’s right to privacy.
The requirement to obtain consent before any disclosure is made is also
reinforced by the law. Cox4 emphasises the wisdom of ensuring that consent is
confirmed in writing while Kloss12 stresses the need to also document any
refusal by the client to consent to disclosure. She further suggests that it is
wise to document when information has been given and rejected by a client,
where possible asking the client to initial the record. Both the law and the
profession require the OHN to obtain the client’s consent before revealing
information.
Exceptions to the rule
There are exceptions to the duty of confidentiality where the law in fact
requires disclosure. If a court order requires the disclosure of confidential
information, then it must be complied with.Â
If OHNs are required to give evidence in court, for example, they cannot
refuse to appear as to do so would be a contempt of court2,4. Disclosure may be
required in the public interest where other people might be put at risk if the
client’s confidentiality were to be respected.
Examples may include situations where there is a threat of violence4, where
there is an infectious disease12 or where safety may be compromised12. Cox4
offers a comprehensive list of the statutory provisions requiring disclosure of
information to a public body.
The OHN may be required by law to disclose information, however the contexts
in which such disclosure could be required are clearly defined and would
rarely, if ever, include the passing of information to managers, HR or
employers.
Conclusion
Neither the profession nor the law allows the OHN to disclose confidential
client information to a third party without the client’s consent, making it
inappropriate for managers, HR or employers to request such information. The
OHN has a duty of confidence to the client and cannot reveal detail without the
client’s consent, which should preferably be in writing. However, the OHN may
inform an employer about a potential hazard without disclosing any particular
employee’s details.
Concerns about environmental issues can be passed to HR without any
accompanying specific client information. When expressing an opinion about an
employee’s fitness, specific clinical details should not be revealed. Indeed,
one may question what value such details would be to anyone without a
healthcare background.
Managers, HR and employers should be helped to understand that the OHN
cannot simply answer their requests and reveal confidential information about
employees. Some insight into the demands of the law and the profession,
requiring that the OHN observe client confidentiality, may help resolve some of
the conflict that currently arises.
References
1. Anon (2001) Professional dilemmas: A matter of confidentiality.
Occupational Health, 53(3): 8-9.
2. Dimond B (2000) Legal issues arising in community nursing. 9:
Confidentiality. British Journal of Community Nursing, 5(8): 401-403.
3. McDonald AM (ed) (1978) Chambers Twentieth Century Dictionary. Edinburgh:
Chambers.
4. Cox C (1998) Medical confidentiality and the OH professional.
Occupational Health Review, 73: 23-27.
5. Whitaker S, Baranski B (eds) (2001) The Role of the Occupational Health
Nurse in Workplace Health Management. Bilthoven: WHO Europe.
6. UKCC (1992) Code of Professional Conduct. London: UKCC.
7. UKCC (1996) Guidelines for Professional Practice. London: UKCC.
8. NMC (2002) Code of Professional Conduct. London: NMC.
9. UKCC (1998) Guidelines for Records and Record Keeping. London: UKCC.
10. Hodges D (1997) The role of the occupational health nurse. In K Oakley
(ed) Occupational Health Nursing, 1-29. London: Whurr.
11. Cox RAF, Edwards FC, Palmer K (eds) (2000) Fitness for Work: The Medical
Aspects. (3rd edn). Oxford: Oxford University Press.
12. Kloss D (2001) A servant of two masters? Occupational Health Review, 90:
26-30.
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13. Howard G (2000) Keeping a Confidence. Occupational Health, 52(12):
14-15.
Dr Dorothy Ferguson, EdD, MPH, BA (Hons), RGN, SCM, RHV, OHNC, HVT, is
senior lecturer in the Department of Nursing and Community Health, Glasgow
Caledonian University
