Clinical decision-making, the process of making a ‘clinical judgement’, is – or should be – one of the hallmarks of expert occupational health nursing. Why, then, does the profession so often allow this responsibility to be led by non-expert HR professionals, asks Ian Houston? What’s more, he argues, there are dangers in this too for employers, which need to be better articulated.
Since December 2019 and the first reported cases of Covid-19 emerged around the world uncertainty is the abiding message delivered through two words: ‘unprecedented times’.
With uncertainty comes anxiety, which can lead to depression. A study partnered by SAP & Qualtrics and led by Mind Share Partners (April 2020) concluded that a staggering 42% of employees globally admitted their “mental health had declined since the pandemic started”, or a near equivalent of one in two.
To set this in some context, just four months previously consultancy Willis Towers Watson had argued this global figure was global 20%, or one in five (Willis Towers Watson, January 2020).
Equally worrying, a Harvard Business Review study from last summer (August 2020) argued 46% of employees said their company had not proactively shared mental health literature or guidance to help
Fast forward 12 months to August this year and a report from Lime Group (August, 2021) reported that 25% of U.K. employees had hit psychological breaking point, with 56% of women and 45% of men admitting they had put a brave face on for colleagues.
We all know HR is a professional requirement within any organisation. But, I’d argue now is the time for those professionals to admit they are out of their depth when it comes to decisions being made internally around employees’ physical and psychological health issues. Decisions that can bring with them consequences, with untold exposures being placed on organisations.
Even the use of third-party companies that sit in either the outsourced arena or the wellbeing arena does not alleviate the risk of liability through the triage decision processes.
In fact, arguably, outsourcing this decision process can actually increase the liability risk through the possibility of General Data Protection Regulation (GDPR) breaches.
‘Hallmark’ of expert nursing
Clinical decision-making is considered the “hallmark” of expert nursing (Simmons, Lanuza, Fonteyn, Hicks, and Holm, 2003). It also brings with it the impartiality, accountability and responsibility of said decisions (Simmons et al, 2003; Saintsing, Gibson, and Pennington, 2011; Ebright, Urden, Patterson, and Chalko, 2004; Casey, Fink, Krugman, and Propst, 2004; Hickey, 2009).
Let’s therefore examine the pitfalls of when this decision process is being led by a non-expert with no accountability, in other words an HR professional who, even if they are meaning well, will not have the clinical decision-making background and rigour of an OH professional.
Nurses are the advocates of patient care, the initial link in a chain identifying complications and eventual health interventions (Thompson et al, 2008).
It is the time for HR professionals to admit they are out of their depth when it comes to decisions being made internally around employees’ physical and psychological health issues.”
This comes with increasing responsibilities, underpinning the credibility of clinical reasoning and clinical judgement. Decisions delivered on an impartial evidence based assessment with potential appropriate interventions, evaluated accurately and delivered in a timely evidence based system is crucial to recovery (Clarke and Aiken, 2003).
In understanding the non-qualified relevance to the ‘clinical judgement’ (Saintsing et al, 2011), it was reported only 20% of medical employers valued the decision-making abilities of newly qualified nurses due to lack of “flight time”.
By this is meant shifts, exposures, decision-making, communication skills, courage to advocate and challenge authoritative decisions when unethical or wrong. All of which begs the question: what would that number be for HR professionals with no clinical or medical training/qualifications?
Consequences and outcomes
In deciphering what a ‘clinical judgement’ is, therefore, we first have to detail when and how this appears. We can do this by looking at a typical employee disclosure and how, dependent on the HR professional’s initial ‘clinical judgement’, the outcome can be completely different.
Employee A and B both disclose to their employer that they have either a physical or psychological health issue.
For employee A, HR decides it is an internal HR issue only. For employee B, by contrast, HR decides it is an occupational health issue.
It is possible to argue that HR has made a good call in both scenarios. But when you drill down in what actually happens as a result, you can end up getting very different outcomes.
Employee A is in receipt of a ‘clinical judgement’ relating to the physical and psychological health issues she/he has disclosed, but one made by a non-clinician. It is a judgement, therefore, that is restricting access to clinical assessment and a qualified ‘clinical judgement’.
Employee B, by contrast, is also in receipt of a ‘clinical judgement’ relating to their physical and psychological health issues that he/she has disclosed.
However, although this ‘judgement’ has been made by a non-clinician, the result of the process is that the employee will be further examined by a clinician within occupational health, in turn allowing access to clinical assessment where it will be assessed correctly.
So, one employee’s disclosures are now recorded as ‘closed’, whilst the other employee’s disclosures have allowed the process to be taken on further.
Potential hot water for employers
Where this gets more serious is that the employer’s obligation to both employee A and B is determinable in its ‘burden of proof’.
As an employee/claimant need not identify a particular ‘adjustment’, it is for the employer to show a reasonable adjustment is not reasonable. But how does an employer prove this when ‘clinical judgement’ was never allowed in employee A?
Employee A will probably therefore feel they are in the weaker position, as their physical or psychological disclosure has now been closed internally and they have been denied access to treatment or further support/adjustment.
This could not be further from the truth, however, as they now sit on the cusp of a compensation claim under The Equality Act 2010 (as a protected characteristic).
Employers should be reminded the disclosure is now live for both employee A and B. An employer would have to justify the ‘clinical judgement’ made by its HR professional either in an employment tribunal or civil litigation.
The presiding judge in both scenarios would only be interested in the ‘clinical decision’ to deny access to treatment and the qualifications of the person who made said judgement.
In short, why did employee B receive a different ‘clinical judgement’ to employee A?
A presiding judge will undoubtedly ask: “What were your qualifications to make such a clinical judgement regarding employee A’s physical and psychological health issues at that time?”
What is HR’s reply? The likely response? “Gut feeling”, “I know her/him”, “we asked questions”, “the employee wouldn’t give us consent to speak to their GP” and so on.
Yet, here is the real kicker to the organisation. The disclosure from employee A comes with a six-year liability (regardless of employment status) for injury claims.
Moreover, an employee who has not received the correct physical or psychological assessment can be expected to experience further health deterioration.
The biggest impact, it may be ruled, is on the psychological health of the employee, with potentially an unlimited compensation claim accruing, dependent on severity and the presiding judge of the day.
Questionable role of mental health first aid
A final word on mental health first aid, the go-to tick-box!
In the employee A scenario, where in all likelihood will they have been sent, if not to occupational health? The answer is: mental health first aid.
An estimated 6.5 hours of online learning (Swain, 2021) is the required interaction to obtain mental health first aid (MHFA) status with the strict guidance of non-diagnosis.
This therefore further compounds employee A’s restricted access to ‘clinical judgement’ for their physical and psychological health issues, exposing employers further in the chain of events.
How, on the basis of 6.5 hours of training, can you possibly formulate a ‘clinical judgement’ on where to signpost employee A?
There are a myriad of physical health conditions that manifest as psychological health issues such as – deep breath – thyroid deficiency or excess, oestrogen and progesterone alterations (example menopause), cancer diagnosis, physical abuse, chest or urine infection, diabetic, chronic pain (example back), acute pain (example endometriosis), brain aneurysm, asthma, musculoskeletal (for example, carpel tunnel), chronic insomnia and something as simple as medication increase or decrease or change or side-effects to name but a few. In all these, and more, an MHFA will have no clinical experience/training or qualification!
Signposting even to something as simplistic as a leaflet or phone number is legally determinable to the employer as a ‘clinical judgement’.”
Signposting even to something as simplistic as a leaflet or phone number is legally determinable to the employer as a ‘clinical judgement’. The employer paid for the MHFA training and supplied it through the organisation, so allowing the MHFA to formulate a conscious decision (in other words, the ‘clinical judgement’) that the specific leaflet, phone number was the best placed intervention for employee A.
After all, there are approximately 300 disorders between the Diagnostic and Statistical Manual of Mental Disorders (DSM–5) and the eleventh revision of the mental and behavioural disorders chapter of the International Classification of Diseases and Related Health Problems (ICD-11).
MHFAs will often claim they just “want to help” or to “make a difference” and have “a natural talent” for listening or providing guidance or support. That’s, of course, all fair and well.
But, as occupational health professionals – and in a working world where the answer to the question of ‘mental health’ is increasingly just ‘first aid’ – are we all to forgo expertise, qualifications and ‘flight time’ in the hunt for ‘clinical judgement’?
Ultimately, in other words, just how far are we going to fail employee A? And what heavy consequences, potentially financial as well as operational, will this failure also have for employers?
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Ebright P R, Urden L, Patterson E, and Chalko B (2004). ‘Themes surrounding novice nurse near-miss and adverse-event situations’. JONA: The Journal of Nursing Administration, 34(11), pp 531-538.
‘Eight ways managers can support employees mental health’, Harvard Business Review, (August, 2020), https://hbr.org/2020/08/8-ways-managers-can-support-employees-mental-health
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‘The mounting crisis of mental health’, Willis Towers Watson, (January, 2020), https://www.willistowerswatson.com/en-GB/Insights/2019/11/the-mounting-crisis-of-mental-health