招待講演1：Diana Kloss教授へのQ&A

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Occupational health (OH) professionals have a duty of confidentiality both at common law and under the ethical rules of the regulated health professions, like the General Medical Council, Nursing and Midwifery Council etc. However, there are exceptions to the rule. One exception is where disclosure is in the public interest, ie the employee’s right to have their confidence respected is outweighed by the need to protect others. An example is where the employee is unfit to drive, where the OH professional is entitled to report to the relevant person, who may be the employer, or the Driver and Vehicle Licensing Agency (DVLA) or even the police, without consent. Another example is where the employee has a mental health condition which makes them a hazard, eg there is a risk of violent behaviour. There is no exhaustive list, and each OH professional must decide for themselves whether they are justified in reporting without consent. As long as they have reasonable grounds for questioning the employee’s fitness and report only to the proper authority (and not eg the newspapers) they will not be liable either in law or before their regulator. I deal with this in the chapter on confidentiality in Kloss OH Law, 6th edition, page 85. There is also a duty to respect privacy in the European Convention on Human Rights, Article 8, but there are exceptions, including protecting the rights and interests of others, in Article 8(2). 

There are other exceptions to the duty of confidence eg the duty to report communicable diseases under the Public Health Act, where a doctor commits a criminal offence if they do not report a case of communicable disease like Covid, measles, food poisoning or Ebola (there is a long list) to the public health authorities.  It is all in my book.

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Where an OH professional is giving general advice to an employer about the need for protection against industrial disease or injury they will usually give information about legal obligations eg statutory health surveillance of employees in relation to eg hazardous substances, noise, vibration, etc etc, where the law has imposed a duty and all that the employer is being advised to do is to comply with the law. Apart from that, the professional must comply with the contract they have with the employer, which involves taking reasonable care and not being guilty of misrepresentation. It would be misrepresentation, and also unethical, to advise an employer that they had a legal duty to, for example, provide blood pressure or cholesterol tests in the workplace, which is false, though OH would be entitled to suggest that such tests would be advantageous both to employees and the employer and offer to provide them for payment. There is an increasing tendency for employers to engage in the promotion of the health and wellbeing of the workforce and it is both legal and ethical for an OH provider to offer those services as long as they do not misrepresent that the employer has a legal obligation. Where what is being suggested is not related to essential health, eg cosmetic procedures or massage, the ethics of the profession advise that OH should not be involved in either advising the provision of or offering such services.

Misrepresentation/breach of contract might lead to a claim through the courts. Unethical behaviour might lead to disciplinary proceedings before the professional regulator. 

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It was the regulators, the General Medical Council, the Royal College of General Practitioners＊ and the Health and Care Professions Council that recommended to the Government that the power to grant a fit note should be extended to nurses, physiotherapists, occupational therapists and pharmacists. For many years the GPs have been trying to get rid of the power to grant fit notes because it takes up so much time and in practice is usually a rubber-stamping exercise. The doctor only has 10 minutes with each patient and rarely challenges their account. The attempt to persuade GPs to suggest reasonable adjustments on the fit note has been largely unsuccessful because most GPs do not have OH training and they say they do not have enough time to consider the matter. At the same time the physios and the OTs, in particular, were anxious to take on that role as in practice they have more contact with the patient than the GP. The reason the Government finally surrendered to the GPs’ demands was that the huge pressure on GPs is causing many to take early retirement or leave for other jobs. The pandemic was the last straw. That is why the Government is trying to increase OH provision, both through the NHS and through employers who are encouraged by grants and tax breaks to provide OH services.

＊Although the GMC and the Royal College of General Practitioners, the regulators, were sympathetic to the problems of GPs, the campaign to expand the function of granting fit notes to nurses and allied health professionals was led by the British Medical Association, which is the doctors’ trade union. They had been advocating this for several years. The Government was persuaded to agree because of the current exceptional pressures on the GP services.

Of course, the main function of the fit note is to certify that the person is currently unfit for work and is therefore entitled to sick pay. A certificate that a person is fit to perform a safety critical function at work will often need a specially commissioned report from a GP (for which the employer will have to pay) or from an OH professional.

I think that you should be aware that, unlike in the US (I don’t know much about Japan) nurses with advanced practitioner training have taken over many of the functions formerly performed by doctors and this is accepted by the public in general. Occupational health nurses with specialist training are the backbone of OH provision and are respected as experts. Many employers accept their advice over and above the advice of the GP.