Records that contain any details about a worker’s health, whether kept by occupational health professionals or by management, are considered in law to be ‘sensitive data’ since they contain health information. Medical records are, in this sense, the property of the individual to whom they relate for the purposes of disclosure.
The Data Protection Act (DPA) provides for special rules relating to medical and social work records (Data Protection Act (Subject Access Modification) (Health) Order 2000). That individual’s consent must be given, save for in exceptional and defined circumstances as set out in the DPA, before they can be disclosed.
Other legislation also covers some of the exceptional circumstances where there may be a legal obligation to disclose medical information to a public body: for example, reporting notifiable infectious diseases to public health authorities. Detailed information on the complex area of confidentiality and disclosure obligations is provided in Occupational Health Law, by Diana Kloss.
The general rule is disclosure only with the express consent of the individual. Where a demand is made, for example by a legal representative, to disclose without such consent, then a court order will be required. Disclosures without consent should only be made after taking legal and professional advice.
Health information and medical records can cover a wide range of issues that occur in the employment situation, from routine appointments to telephone or online consultations, e-mails, results of drug and alcohol tests, vaccinations, industrial injuries, counselling consultations, health questionnaires, medical certificates, medical reports, and any health information required to be kept by legislation or in anticipation of litigation.
It is likely that any personal information provided by a worker to an occupational health professional in the course of a consultation could be construed as sensitive health information data, whether this is through a counselling session or the completion of a health questionnaire. Clearly, where fitness to work is assessed in relation to taking up or returning to employment, or in considering reasonable adjustments where the Disability Discrimination Act 1995 applies, personal data of a sensitive nature will be processed.
A health record is defined in the Act as being any record that consists of information relating to the physical or mental health or condition of an individual, and has been made by or on behalf of a health professional in connection with the care of that individual. Health records cover the full range of media by which information can be held on an individual including, for example, scans, X-rays, print-out results, computer records and handwritten notes.
A health record kept under a health surveillance programme is different from a medical record as it should not contain confidential clinical details. These records should be kept as confidential personnel records. The HSE recommends that health surveillance records should contain the following: name, gender, age, address, date of joining present job, record of job(s) involving exposure to hazard(s), date and conclusions of health surveillance procedures. These conclusions can contain assessments made by doctors, nurses, or other suitably qualified or responsible persons, but must not contain clinical information.
The Access to Health Records Act 1990, which gave individuals the right to access their manually held medical records, has now been repealed save for the access to health records of the deceased. Records of living persons now fall within the protection of the Data Protection Act 1998. Subject access rights to health records now follow the Act’s provisions, including fee-charging levels. As previously noted, current fee rates and full details of these provisions should be checked via the Information Commissioner’s website.
Currently a maximum fee of 10 can be charged for granting access to health records that are automatically processed. For granting access to manually held records, or a mixture of automated and manual record files, where the subject access is granted by the supply of a copy of the information in permanent form (a printout, paper copy or disk), a maximum fee of £50 can be charged. No fee can be charged to someone who simply wants to inspect their own health records.
Access
The Access to Medical Reports Act 1988 (AMRA) gives individuals a right of access to medical reports relating to them that are supplied by doctors for employment purposes. An employer may not apply to a medical practitioner or, it follows, to another health professional for such a report without the employee’s consent.
Problems as to the legal framework and related obligations can sometimes occur because the legislation is covered today over different Acts, case law decisions and regulations, many of which are complex – quite apart from the difficulty of piecing together the relevant law. The key aspects to the legal standards are as follows:
Medical reports
A medical report is defined as one prepared by a medical practitioner who is or has been ‘responsible for the clinical care of the individual’ (AMRA). It is the case in practice that occupational health specialists and other health professionals, whether or not they have responsibility for the clinical care of the individual, may also write reports for employment purposes. Their obligations are guided but not enforced by the AMRA. The precise legal obligations for these types of medical reports are also covered by the Data Protection Act 1998, together with the health practitioner’s own professional standards of conduct and ethical guidelines.
In the Access to Health Records Act 1990, a ‘health professional’ is described as being a medical practitioner, dentist, registered nurse, physiotherapist, optician, dietician, clinical psychologist, occupational therapist, speech therapist, etc. The list is not exhaustive but essentially it refers to those professionals who are qualified, registered and bound by a professional code of conduct and ethics.
Employees have the right of access to medical reports relating to them including those supplied for employment purposes.
Employers must notify the employee in writing of their intention to apply for a medical report. This can be achieved by expressing it in the written terms and conditions of employment, but problems could arise if this is challenged, so our best practice recommendation would be to ensure that the contract of employment covers the point and that written permission from the employee is obtained when the clause is to be exercised.
Case law has established that when an employee consents to a medical examination, that person can be deemed to have given their consent to a report of that examination being disclosed without further consent being required. Again, it is a matter of judgement as to what is best practice and best employment relations standards as well as what meets the minimum legal standards.
When the employer seeks to obtain consent from the employee, he must advise of the statutory right to refuse to allow a report to be supplied, and to see its contents and to request alterations or amendments before it is supplied.
Retrospective access is allowed to the subject of a report provided for employment reasons for up to six months from the date when the report was originally provided.
Access to the full report, or part of it, can be denied to the subject by the doctor if it is reasonably believed that the disclosure might be likely to cause physical or mental harm to the person, or if it involves the disclosure of the identity of a third party without that person’s consent.
Employee rights
The employee or prospective employee is entitled to see the report and be given the opportunity to correct any errors before it is supplied to a third party, and to withhold consent to the report being supplied.
There are implications for employees to consider should they unreasonably refuse to consent to a medical examination and to the release of a report. Contracts of employment should contain an express wording as to the right to request and require a medical report. The wording of this should be reasonable, but must cover the band of situations where a medical report could be necessary rather than be so narrowly restricted to returners from lengthy sickness absence situations.
Special discount for readers of Occupational Health magazine
For case law examples, buy your copy of the handbook now.
Readers can buy a copy of Employment Law and Occupational Health: A Practical Handbook by Joan Lewis & Greta Thornbory at the special 10% discount price of just 25.00 including postage and packaging (normally 27.99 plus postage and packaging).
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This practical and readable handbook is an essential guide to best practice for all occupational health practitioners. It will help to ensure both business success and respect for individual employment rights. Sickness absence can present major costs and business management problems to employers, and safeguarding health is therefore of the utmost importance to employers as well as staff.
ISBN: 1405149728, Paperback: 216 pages
