This can unfortunately lead to complaints.
The GMC’s The state of medical education and practice in the UK (2017) details the number of complaints it receives about doctors. Occupational health doctors receive proportionally more complaints with one in five occupational health doctors receiving a complaint in the period 2012-17, compared to one in 20 doctors in some other specialties.
A recent 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 coroner’s 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 prior to 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.
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 that 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 the MDU’s 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 what information to include in a report, what consent is needed and what to do if a patient withdraws their consent for a report to be sent. Additionally, FOM advises that it is important to ensure that 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.
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.
If the patient asks for information in the report to be changed then the same principle applies as those used when a patient asks for their medical records to be changed. Factual inaccuracies can be corrected but do not amend or omit 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 that 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 your MDO prior to making a disclosure about the patient without their consent.
This guidance was correct at publication 28/11/2019. It 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.