With respect, if the doctor or consultant is the subject's own doctor then
there is a patient-doctor relationship.
What you seem to be confusing is where the employer sends the employee to an
independent specialist. Presumably the employee can refuse to attend and
suffer the consequences.
I might add that when many years ago I was working for a council and I had a
period off sick - I attended the occupational health department of a local
hospital who worked under contract to the council.
They advised my employer on whether or not I could return to work. But they
were also advising me.
As I understood it at no time was my employer advised about my specific
complaint - but whether I could go back to work and what work I could do.
The hospital department acted as their in-house occupational health team and
therefore they acted on their advice without being given the precise details
of my case.
After all, if one asks a specialist to give advice on someone's health,
presumably that specialist is best placed to advise the employer on what is
the best way of treating them - without necessarily giving the employer the
full details of the employee's medical history. After all, unless the
employer has its own occupational health team what are they then going to do
with the information - they are not doctors.
I might add that if there is an in-house team of occupational doctors they
should also keep the employee's state of health confidential but rather
advise on how they should be treated.
Nick Landau
----- Original Message -----
From: "Paul Ticher" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Monday, November 06, 2006 12:06 PM
Subject: Re: [data-protection] Medical records/reports
Tony,
The easiest way to answer your questions, I think, is to quote the relevant
section from my book, 'The employment records handbook' (Directory of Social
Change, 2005).
I hope list members feel that it is acceptable to publicise the book in this
way.
[Starts]
You may occasionally want to obtain a medical report about an employee, for
example where you are not satisfied with their stated reasons for absence on
health grounds, or where you want to check their fitness for a particular
task or role.
If the report is not related in any way to treatment of the individual, they
have no right to see the report. So, for example, you might commission a
report from a specialist purely to give their opinion on the employee's - or
job applicant's - current state of health or fitness, and this could
legitimately be withheld from the employee. (Note, however, that if you
want to be able to insist on employees being medically examined you should
make provision for this in the contract.)
You also have the option of requesting a report from the employee's or job
applicant's own doctor, or any medical practitioner who has been involved in
treating them. This is covered by the Access to Medical Reports Act 1988,
and the employee, or prospective employee, has specific rights, including:
· to refuse consent for the employer to be supplied with a medical
report, or even for the employer to ask for one.
· to have access to the report before it is supplied to the employer.
· to ask the doctor to change the report before supplying it, and to
attach their own views if the doctor refuses.
The employer must tell people about their rights, and must get their consent
before applying for a medical report from a doctor who has been treating
them. It is strongly recommended to get this consent in writing, as you may
have to prove to the medical practitioner that you have obtained consent.
The doctor must keep the report for six months, during which time the
individual has the right to inspect it further. The procedure for
individual access is laid down. The employer must tell the individual that
the report has been requested. The individual must then contact the medical
practitioner within 21 days to make arrangements to see the report. The
individual does not have a right to a copy of the report, although it is
common practice for a copy to be provided.
When you receive a medical report you should, of course, keep it strictly
confidential, and only allow access by people who need to be involved in
making any decision. Once the need for the report has passed, you do not
need to keep either the report itself (which should be securely destroyed)
or the consent form. You may want to keep a record of the outcome: for
instance, that a report was commissioned and concluded that the employee was
fit for work.
The employee also has the right, under the Data Protection Act, to apply for
access to their own medical records. The employer, however, is forbidden
from making use of this as a back door means of access. The Data Protection
Act expressly outlaws any contractual provision which tries to force anyone
to get access to their own medical records and show them to, or provide a
copy to, the employer.
The result is, therefore, that you cannot get a report from the employee's
own doctor if the employee doesn't want you to, and you can only insist on
them going for a medical (from a doctor you commission, or from the
occupational health service, for example) if your contract allows you to.
[Ends]
Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB
I hereby require any recipient of this message not to use my personal data
for direct marketing purposes.
----- Original Message -----
From: "Smith, Tony" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Monday, November 06, 2006 11:51 AM
Subject: Medical records/reports
We have had a query from one of our bureaux regarding an employee's
rights to refuse consent and/or to see medical records/reports before
they are disclosed to an employer. I think that I am reasonably safe in
saying that, unless a report is produced for a tribunal/court case, the
employee may refuse to disclose it. I also believe that the patient has
a full right to see all the records (on payment of fee and, subject to
fact that disclosure would not be harmful to the patient) but, I am not
sure what other rules are out there.
I assume that an employer is entitled to see some records if an employee
is regularly off work and also that the employee may ask for some
information to be withheld but, is there any information about where the
line should be drawn?
I am not so sure whether an employer can ask for records of a
prospective employee. I assume that, if they insisted on full records
they might leave themselves open to a DDA claim.
Any ideas?
I am aware that any advice given would be with the caveat that refusal
to disclose information might have an effect on the employee/employer
relationship.
Tony Smith
Information Officer
Citizens' Advice
115-123 Pentonville Road
London
N1 9LZ
Tel 020 7833 7082
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