Keeping a confidence

Disclosing confidential medical information can lead to employees making
libel claims, but practitioners should be aware there are circumstances in
which is it acceptable.  By Gillian

Most OH physicians and nurses understand and practise sound ethical medicine
based on the codes of ethics published by the General Medical Council
(Confidentiality, Protecting and Providing Information, June 2000), the Faculty
of Occupational Medicine (FOM, fifth edition) and the UKCC.

It is commonly accepted that when an employee is seen by an OH physician or
nurse for an assessment, whether pre-employment, for fitness for work, for an
assessment under the Disability Discrimination Act 1995 or in respect of an
employment tribunal or personal injury claim, the employee must give his or her
express consent to the disclosure of any medically confidential information.

Often the report will not disclose anything of a medically confidential
nature, but will state "fit for work", "fit for work subject to
modified duties (specified)" or "unfit for work". No consent is
required for statements of that nature.

There are cases where someone in the company other than the OH practitioner
might need to know more about the medical condition. For example, if the
illness is one of alcohol or drug addiction and the company has a policy of
helping in its treatment, someone in the company might need to know to
authorise the policy and the sick pay for the employee.

Another example is where there is a disciplinary case or where selection is
being made for redundancy, and absence from work is a criterion. The reason for
the sick leave might need to be disclosed to protect the individual under the
Disability Discrimination Act 1995 from any discrimination or from an unfair

It might also be important for a manager to understand more about a
condition before deciding whether to offer the person a job and what special
conditions there should be.

Clinical details of a confidential nature do not necessarily have to be
disclosed, but if the OH physician or nurse believes there is such a need,
obtaining written informed consent is the only practice to pursue.

What is the duty of confidence?

In the case of London Borough of Hammersmith & Fulham and Anor v
Farnsworth [2000] IRLR 691, the Employment Appeal Tribunal referred to the
meaning of a doctor’s duty of confidence. It put it succinctly, "A duty of
confidence is one which prevents the holder of confidential information from
using it 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."

It also referred to the employer’s defence, that it did not know what
medical condition was involved when it rejected Farnsworth for the job, saying,
"A self-denying practice of not making further enquiries of its
occupational physician as to the medical history of a job applicant was not
justified." In this case the OH physician had obtained Farnsworth’s
informed express consent to disclose her previous history of depressive illness
to her prospective employers if necessary.

The EAT continued, "In the present case the occupational health
physician was not bound by any duty of confidence… the applicant had completed
a form providing information and giving her consent to medical information
about her being provided to her employers. The purpose of the examination and
the purpose for which information and consent was given was to enable the
council to reach a decision as to whether or not she would be employed."

Informed express consent

Informed consent means the patient has agreed either orally or in writing –
which is better practice – to the disclosure of the specific clinical
information for a specific purpose that has been fully explained to him or her.
The patient should also be fully aware of and give consent to the disclosure of
that information to named individuals who have a "need to know".

When an employer obtains an employee’s consent to be seen by its expert in,
for example, a claim for personal injuries, unfair dismissal or disability
discrimination, it is sensible to ensure it is clear consent is being given not
only to the examination but also to the disclosure to the employer of any
report – it is worth nothing to the employer if the patient consents to the
examination but then refuses to allow the report to be sent.

Implied consent

In a controversial Court of Appeal decision, one judge, obiter dicta (not as
part of the reasoned decision), suggested that if a medical examination is
required by an employer for litigation, "by consenting to the medical
examination on behalf of the employer, an applicant is consenting to the
disclosure to the employer of a report resulting from that examination. No
further consent is required. A practice under which a person who, having agreed
to be examined, then claims a veto upon disclosure of the report to those who
obtained it would be an impediment to the fair and expeditious conduct of
litigation" – per Lord Justice Pill, Kapadia v London Borough of Lambeth
[2000] IRLR 699.

It would be unsafe to rely on those dicta, even though an eminent judge in
the Court of Appeal made it. It is at odds with all the codes of practice on
ethics and with the dicta of Mr Justice Morland – admittedly in a lower court,
the Queen’s Bench division of the High Court. Medical professionals are warned
to obtain written informed consent to the disclosure of any report, wherever it
is to be sent.

Writing and publishing medical reports can lead to all sorts of legal
complications. One unfortunate doctor, Dr de Taranto, was not only sued for
breach of confidence but was also successfully sued for libel – Cornelius v Dr
N de Taranto, 30 June 2000, Case no 98-C-38.

Libel consists of a statement which is untrue and prompted by malice, and
which "has the effect of lowering the reputation of the individual in the
estimation of right-thinking people".

It has to be published before it can found to be an action for libel. Here
the report had had limited publication, going only to Mrs Cornelius’ GP and to
a consultant psychiatrist whom Dr de Taranto thought she had persuaded Mrs
Cornelius to see for treatment.

The judge held that the correct test in determining this question was to
consider those statements from the point of view of a reader in the health
service in its broadest sense, taking account of how nursing auxiliaries and
administrators, clerical staff and receptionists would read them. If only
psychiatrists, doctors and qualified nurses had read the report they would not
think less well of Mrs Cornelius, but the additional category of readers
"probably might do so and behave towards her very differently because of

Checking the facts

Had Dr de Taranto checked the letter in the GP’s notes properly, she would
have understood that theft charges referred to were made against two male
youths, not Mrs Cornelius, and charges of receiving stolen goods brought
against the patient when she was 18 were eventually dropped.

Dr de Taranto was found to have been in breach of her duty of confidence in
disclosing her medico-legal report to a psychiatrist and Mrs Cornelius’ GP, as no
written consent had been given. Indeed, she had refused to give her written

Dr de Taranto assumed implied consent had been given, but the judge rejected
this argument. He said that for implied consent to be demonstrable, Dr de
Taranto would have had to demonstrate she had shown her draft report to Mrs
Cornelius and allowed her to comment on it, and she should have had a clear
record in Mrs Cornelius’ notes that her consent was being given for this report
to be sent to her GP and a consultant psychiatrist. None of these matters was
written up in the notes.

The judge held that the patient’s "express consent" should have
been obtained, preferably in writing. He said he was mindful of Article 8 of
the Human Rights Convention – the right to respect for private and family life
– even before the Human Rights Act 1998 came into force.

However, he ruled that damages should be limited to injury to feelings
caused by the breach of confidence, and that considering all the circumstances
of this case the award should be modest – £3,000, plus £750 for Mrs Cornelius’
legal costs in trying to retrieve the medical report from the NHS records.

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

Staying on the right side of the law

Because everyone now has a right to argue that their privacy has been
breached under Article 8 of the Human Rights Convention, brought into UK law by
the Human Rights Act 1998 on 2 October 2000, and because of lay people’s
heightened awareness of their rights, doctors and nurses must be very careful
about what they write in medical reports and notes, and must ensure they have
followed their ethical guidance.

It is best to ask a respected colleague what they would do in a tricky
situation, or, even better, to ring for advice from the MDU, MPS, RCN or UKCC.

It is essential to obtain written informed consent, and to ensure the
patient understands what will be disclosed and why and to whom the disclosure
will be made.

Whether or not there is a statutory right of access to the report, many
doctors still dictate the report in front of the patient and make a note of the
patient’s consent or comments. In any event express informed consent to the
disclosure of that report must be obtained – and there is nothing like getting
it in writing!

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