Occupational health doctors face situations unique to their specialty due to the need to balance their ethical duty to patients against the expectations of employers. This can unfortunately lead to complaints.
A review of our files found we opened over 100 advisory files for occupational health members in five years. While these files did not include claims, they did cover a range of medico-legal processes such as patient complaints, GMC investigations, disciplinary processes, criminal investigations and coroners' inquests.
Many of the patient complaints focused on the usual common themes seen in other specialties, such as poor attitude or poor communication. However, there was a strong theme of complaints related to alleged breaches of confidentiality and patients strongly disputing the doctor's opinion.
Common scenarios seen in complaints about disclosure of patient information to third parties included the following:
- a patient's view that there had been insufficient, or a complete lack of consent, for the disclosure
- the patient alleging that the information contained within the disclosure was incorrect and should have been verified with them before disclosure
- the inadvertent disclosure of information leading to a breach of confidentiality, such as by sending a report to the wrong email address.
The issue of confidentiality was also raised frequently by members in other advice files. Members asked about disclosing information to employers, the patient's regular GP or the police. Advice was also commonly requested in relation to the retention and destruction of notes in private practice, revalidation, and how to find a responsible officer.
Managing disclosure of medical records
To help its members respond to such dilemmas, the Faculty of Occupational Medicine (FOM) published Good Occupational Medical Practice which applies the GMC's ethical principles to occupational health doctors. FOM states the additional guidance is necessary as, "the need for specific additional guidance for occupational physicians arises because their practice differs significantly from that of doctors in most other specialties." Additional guidance on other ethical considerations is available in the FOM's booklet, Ethics guidance for occupational health practice.
In our experience, it is usually helpful to develop clear and robust protocols on disclosing medical reports, which can be shared with employers and patients so that both groups are aware of the process involved. This can help to manage their expectations.
The FOM's guidance covers:
- the information to include in a report
- the consent that is needed
- what to do if a patient withdraws their consent for a report to be sent.
Additionally, FOM advises that it is important to make sure the report is accurate, does not deliberately omit relevant information, contains a balanced opinion, and only covers information of which the doctor has direct experience or relevant knowledge.
Patient consent to disclosure
If the patient has given their consent to be assessed and any subsequent report to be released then occupational health doctors would not usually be required to seek separate consent for release of the report. However, paragraph 9 clarifies that, "You should, however, usually offer to show your patient or give them a copy of any report you write about them for employment or insurance purposes before it is sent."
This advice could prevent a complaint from a patient as it reiterates that there should be no unexpected information for the patient in reports shared about them.
Factual and accurate reporting
If the patient asks for information in the report to be changed, the same principle applies as when a patient asks for their medical records to be changed. Factual inaccuracies can be corrected, but do not change or leave out information so that the report becomes false or misleading.
On reviewing the report and being told that it cannot be changed, some patients will withdraw their consent for the report to be disclosed. They should be informed that this could have an adverse impact on them. It is appropriate to let the report commissioner know the patient has declined consent for their report to be shared, but usually you would not provide any additional information.
There are exceptions to this; for example, if a failure to share information about the patient may expose others to a risk of death or serious harm. In this situation, it is a good idea to contact the MDU before making a disclosure about the patient without their consent.
This page was correct at publication on 13/01/2021. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.