Preparing for giving legal evidence

Standing in front of a tribunal to give evidence can be a daunting prospect. Jenny Mason looks at what an OH adviser needs to know.

Few OH practitioners relish giving evidence at a tribunal hearing, but it is a real possibility at some point in a practitioner’s career. The way that employers act on OH advice can lead to a claim of unfair treatment or discrimination and then legal action. A hearing will scrutinise the process that is in place to provide advice, so OH practitioners should follow all aspects of OH professional standards.

Clinicians’ opinions will sometimes vary. If challenged, the clinician can express how and why they reached their opinion, and ultimately the judge will decide on the verdict. Walker v Northumberland County Council (1995) is a test case that provides guidance to clinicians on the foreseeability of illness.

The case concerned a social worker who had reported stress arising out of a greatly increased workload. When he returned to work, he was told that he could have an assistant to ease his workload. However, the assistant turned out to be only intermittently available, a situation that lead to a second breakdown.

This case established the precedent that an employer can be held liable for mental injury to an employee caused by work-related stress. The judgment underlined the employer’s duty of care to provide safe systems of work in respect of occupational stress as well as other hazards, and to take steps to protect employees from foreseeable risks to mental health.

Consent

Certain processes must be followed before giving a professional opinion on an employee’s fitness to work. Initially, the worker must give consent to attend the appointment with OH.

This should be the responsibility of the referring manager, who should make sure the employee is fully aware of why he or she is being referred to OH, and understands that the manager will be provided with a report outlining the outcomes of the consultation and that there may be possible consequences from the consultation.

In practice, however, it is not unusual for an employee to attend an OH appointment without a full understanding of the reason for the referral. Attendance in itself does not necessarily imply consent.

Therefore, it is essential that the clinician ensures that the employee has given his or her informed consent before commencing with the consultation, and this should be recorded in the OH records.

The General Medical Council provides guidance on how consent can be achieved in its Good medical practice guidance notes (General Medical Council, 2013).

An OH practitioner cannot always give a professional opinion without access to medical reports from the employee’s GP or specialist physician/surgeon.

A GP will not disclose such information unless satisfied that their patient has sanctioned this and will have the opportunity to see the report prior to it being sent to the OH adviser. It is good practice to obtain a medical report, particularly when a decision about dismissal could be made.

In a consultation, the OH practitioner can consider the information provided as subjective and open to interpretation.

If the employee is claiming unfair dismissal on the ground of disability discrimination, the evidence provided by OH could be challenged as being insubstantial without additional supporting medical evidence.

Nevertheless, in the case of Spence v Intype Libra Ltd (2007) the Employment Appeal Tribunal (EAT) held that a failure to obtain and consult on a medical report before dismissing an employee does not in itself breach the duty to make reasonable adjustments for disabled employees.

Record-keeping

Occupational health records hold the same legal requirements for security and storage as all medical records.

Medical information is deemed as sensitive data under the Data Protection Act 1998, which defines a health record as "consisting of information about the physical or mental health or condition of an identifiable individual made by or on behalf of a health professional in connection with the care of that individual".

Under the Access to Medical Records Act (1988) the employee is able to exercise their legal right to access their OH records and view what has been written about them. Because of this, it is essential that all notes and reports written provide only factual and observational information.

The Nursing and Midwifery Council (NMC) provides clear guidance to nurses on record-keeping and says that this assists in addressing legal processes.

Within the NMC Principles of good record keeping, there is guidance on ensuring that: records are legible; the author of the record is clearly defined; the language used is easily understood; and the date that the record was completed is provided. Abbreviations, unnecessary jargon or irrelevant speculation should be avoided and records must not be destroyed or altered without authorisation (NMC, 2010).

OH is accountable for protecting the confidential information held within these records. Patient confidentiality remains one of the most important and fundamental professional factors for clinicians and its importance is highlighted in the NMC Code of professional conduct.

In Tracey Cooke v West Yorkshire Probation Board 2004, the employer accessed confidential OH records without consent of the employee. Tracey Cooke, the OH adviser, had clearly informed the manager of the legal implications of unauthorised access to medical records. Cooke was represented by the Royal College of Nursing (RCN) in the case, but she was ultimately dismissed from her post.

She then brought a case to an employment tribunal, which ruled that dismissing an employee because she complained of her employer’s breach of a legal obligation counts as an automatically unfair dismissal under the Employment Rights Act 1996.

Discrimination

Following the introduction of the Equality Act 2010, employers are no longer able to ask for health screening to be undertaken prior to an offer of employment being made. A suitably qualified health professional should assess the requirements of the task and relate it to the employee’s medical conditions, minimising the risk of discrimination against any disabilities.

There are, however, occasions when information provided raises concern about the employee’s personal safety. In such a case, the practitioner must consider if it is absolutely in the employee’s best interest for their GP to be made aware of such concerns. Such cases are often as a result of a disclosure of suicidal thoughts or self-harming behaviour and the practitioner has no option other than to inform the GP of their concerns.

If the practitioner provides the GP with privileged information that may not pose an immediate risk to the personal safety of their patient, however, it could be deemed unlawful.

In Gomez v GlaxoSmithKline (2011), when an employee with a classified disability was dismissed from employment, it was found that the OH physician had breached confidentiality by informing the GP of the dismissal and was liable for disability harassment (Kloss and Ballard, 2012).

The legal process

Health records that are required for legal proceedings are usually obtained through the Data Protection Act 1998 or the Access to Health Records Act 1990.

Health professionals releasing information to lawyers acting for their patients should ensure that they have the patient’s written consent to disclosure and, where there is any doubt, confirm that the patient understands the nature and extent of the information disclosed.

In practice, most solicitors will provide the patient’s signed consent when requesting confidential information. If a solicitor acting for someone else seeks information about a patient, their consent to the release of the information must be obtained (British Medical Council, 2008).

If a case is called to court, it is essential that the OH adviser prepares before attending the session. The legal representative should provide support and assistance about the legal process.

For those that are attending court for the first time, it may be beneficial to sit in and observe a case in order to establish a better understanding of how the process unfolds. Public access to such cases is usually available, and information can be obtained from the local regional centres.

The legal representative acting on behalf of the claimant is acting in their client’s best interests. While it may be uncomfortable for the practitioner to have their clinical decisions scrutinised and challenged, the lawyer’s job is to question the decision-making processes involved.

This should not be considered a personal attack on the OH practitioner. The RCN offers its members independent advice and support if required to provide evidence at an inquest or an inquiry.

Many cases can take months or even years before reaching court. Given the number of employees an OH practitioner might be required to see in that time, it becomes clear that the likelihood of retaining such detailed information from memory alone is almost impossible.

Therefore, the records relating to such a case must provide an accurate and factual account of all of the information received and reported upon.

The knowledge that the records hold a true and accurate account of the event should be sufficient for the practitioner to be able to defend their actions with confidence should they be required to do so.

References

Nursing and Midwifery Council (2001). "Code of professional conduct".

British Medical Council (1999). "Confidentiality and disclosure of medical information toolkit".

General Medical Council (2013). "Good medical practice".

Kloss D, Ballard J (2012). Discrimination Law and Occupational Health Practice. Chapter 4: Disability Management and the Law. The At Work Partnership; Elstree, Hertfordshire.

Nursing and Midwifery Council (2010). "Record keeping: Guidance for nurses and midwives".

Workshop: Applying the law
to workplace health

Advice and guidance on applying the law to clinical practice when providing evidence in court is available for OH clinicians, HR and line managers by attending "Applying the Law to Workplace Health", an interactive, one-day workshop delivered by a barrister at law and an OH practitioner. The course offers an opportunity for delegates to take part in a mock tribunal to experience first hand being legally challenged on the information they are providing.
For further information contact enquiries@burrowslaw.co.uk

One Response to Preparing for giving legal evidence

  1. Susan Gorton 5 Mar 2014 at 11:19 am #

    It’s also worth noting that strict adherence to keeping ALL written material (and that includes emails to and from individuals related to the employee’s case whether manager, GP, HR the employee’s work and home addresses) as they will be disclosable in the event of a case before a tribunal. Managers are not always aware of the distinction when asking for advice by email about how to manage an employee, whom they mention by name,