The Faculty of Occupational Medicine (FOM) has published clarifying guidance for occupational health practitioners on a range of ethical considerations around the release of records of people who have died.
The guidance has been developed because, FOM said, it had been seeing increased requests from practitioners for advice and guidance around the release of OH clinical records without informed consent, in part because of the impact of the pandemic.
“Most such requests relate to OH records of deceased NHS workers where the concern of interested parties is centred on COVID-19 as the potential causal agent,” said the faculty.
“In some cases, the records are being requested by non-clinical staff (HR or lawyers) to consider issues relating to the possible legal liability of the employer. In others, a medical director or Caldicott Guardian has been the origin of a request to support an internal investigation and, in some cases, the request has come directly from HSE.
“OH staff have been placed under considerable duress for urgent release, and senior staff in the employing organisations have argued that they are the owners of the records and have the right to access as data controllers,” FOM added.
Within the guidance, FOM advised that OH practitioners should question the basis of an authority being cited as a reason for the release of a clinical record.
“Those requesting records, with appropriate authority, would be expected to be able to cite the relevant legal basis under which the request is being made. It is important to recognise that the GDPR [General Data Protection Regulation] alone is not a sufficient basis.
“Wherever possible, the informed consent of the next of kin should be sought. Clinicians may also seek advice from their clinical indemnity insurer or registration body,” it added.
Practitioners are also advised to make sure their actions when releasing OH records are clearly recorded in the employee’s records. “It should be apparent who the records were released to, when, and on what legal basis. In doing so the OH professional should be able to demonstrate that they have acted in good faith and in line with expected practice,” it said.
The guidance is intended to clarify and supplement the eighth edition of FOM’s Ethics Guidance, FOM added.
The full clarification can be found on the webite of the Faculty of Occupational Health Nursing.