One of the most difficult aspects of OH practice arises when OH are asked to divulge information about an employee’s health by an HR department concerned about their absence record or ability to do their job.
Information about an employee’s health is confidential medical information and confidentiality is the most requested topic of discussion by members of the Royal College of Nursing (RCN), according to Carol Bannister, the RCN’s national adviser on OH.
Employment lawyer Gillian Howard opened the IRS conference on ‘Ethics and Confidentiality in Occupational Health’ by exploring the tensions between the OH professional’s contractual obligations as employees and their duty to maintain confidentiality. OH professionals could be sued, disciplined and dismissed by an employer, as well as struck off by their professional body for breaches of confidentiality, said Howard.
She also highlighted the implied trust and confidence a patient/client places in a healthcare professional. However, she also covered the instances when confidentiality can be breached, and the issues surrounding this – such as ‘in the public interest’ – and said there needs to be clear policies for sickness absence and a clear definition of the roles of HR, line managers and OH. Howard stressed that no management referral to OH should be made unless it is in writing, clearly stating what HR wants to know – and that is not the medical diagnosis and treatment.
Simon Wadmore, a data protection consultant, presented two sessions on the practical aspects of the Data Protection Act, and the implications for OH professionals in implementing the new Code of Practice.1 Processing information does not just concern collecting, storing, extracting, manipulating, archiving and destroying, but also includes discussing an employee in a public place. Referring to the new Code of Practice on workers health, Wadmore stressed that employees must understand the reasons why OH retains their information. He outlined how long OH records should be kept:
- Pre-employment information, if not selected – six months
- During period of employment, plus 3 years
- For specific legislation and health surveillance, such as COSHH. Asbestos Regs etc, according to the legislation – mainly 40 years.
He also suggested that records, especially questionnaires, should be shredded rather than left whole for incineration.
Dr Stuart Whitaker, a senior lecturer in OH at St Martin’s University, Lancaster, explored the ethical dilemmas in OH, particularly those highlighted in his chapter of the book, Practical Ethics in Occupational health (reviewed on page 12).2 His talk was based on the three principles of ethics.
He highlighted the ethical guidelines put out by a number of bodies,3,4,5,6,7 and asked the question: how often do any of these bodies take action regarding breaches of these issues?
His research on pre-employment health assessment had shown there are a variety of problems in practice and many health assessment forms are asking unnecessary and intrusive questions. He stressed the need for clear policies for both HR and OH, for pre-employment, sickness absence, alcohol and drug testing.
The day concluded with a look at the medical and nursing professional codes of practice. OH consultant Greta Thornbory covered the nurses’ aspects of confidentiality and talked about the RCN Guidance for Occupational Health Nurses, highlighting the recent industrial tribunal in which Tracey Cook won her case on the basis of ‘protected disclosure.7
1. Information Commissioner (2004) Data Protection Act’s draft Code of Practice Section 4 ‘Information about Workers Health’, www.informationcommissioners.gov.uk
2. Westerholm, Nilstun & Ouvreteit, Eds. (2004) Practical Ethics in Occupational Health, Oxford: Radcliffe Publishing
3. Faculty of Occupational Medicine, Guidance on Ethics in Occupational Physicians 5th edition www.facoccmed.ac.uk
4. International Commission on Occupational Health, www.icoh.org.sg
5. General Medical Council, www.gmc-uk.org
6. NMC (2002) Code of Professional Conduct, www.nmc-uk.org
7. RCN (2003) Confidentiality: Guidance for occupational health nurses, www.rcn.org.uk
8. DoH (2003) Code of Practice on Confidentiality www.doh.gov.uk
Principles of Ethics
- Beneficence: duty to do good and not to do harm
- Autonomy: respects for individual’s rights and self-determination
- Justice: social justice, equity and fair treatment for all
Source: Practical Ethics in Occupational Health