This article is taken from my book The Health at Work Guide to Life
Like any health professional, Occupational Health Advisers, Physicians and associated professions are bound by strict rules that govern their practice. An employee’s health information is theirs and theirs alone unless they consent otherwise. Confidentiality is a fundamental part of professional practice that protects human rights. This is identified in Article 8 (Right to respect for private and family life) of the European Convention of Human Rights which states:
“Everyone has the right to respect for his private and family life, his home and his correspondence.
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
The common law of confidentiality reflects that people have a right to expect that information given to a health professional is only used for the purpose for which it was given and will not be disclosed without permission. This covers situations where information is disclosed directly or is obtained from others.
Confidentiality can only be breached if the information is required by a court of law, the patient (employee) consents – either implicitly for the sake of their own care or expressly for other purposes or it is justified in the greater interest of the individual or the public.
This raises some interesting issues in the working environment. A manager referring an employee for an opinion on fitness for work might think that they have a right to know everything about the individual they have referred. This is not the case. In fact, the manager does not have a right to know anything at all unless under a small defined number of legal situations, the employee provides consent or it is in the public and/or employee’s interest to disclose the information. In reality, the circumstances where the latter is appropriate are very rare indeed. The employee is in charge as one aspect of privacy is that individuals have the right to control access to their own personal health information.
As individuals have a right of access to their records they will be able to see a referral form when sent and the occupational health report before it is sent – all under the principle of “no surprises” as set out in guidance from the Faculty of Occupational Medicine 2010. The Nursing and Midwifery Council does not yet place the same requirements on OH Advisers who are nurses but it is common practice for reports to be copied to employees whether they want to have sight of it or not.
Often managers and colleagues know a lot when the employee has been open about what is wrong with them, and many are. Also, there is always the “fit note” which should state a diagnosis or reason for absence. When such information has already been made public, the case is much easier to advise on. When the reasons for absence and ill health are not public, care, tact and discretion are required by the OH professional, especially when faced with a manager who demands to know everything.
Occasionally, employees do not consent. If this is the case then the employer can only act on the information they have available. Often that is that the employee is not in work and action can be taken accordingly, although the advice of a good employment lawyer would be advisable.