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With a high duty of care owed by employers to their employees, employer companies regularly engage doctors to assess and report on their employees. The employer pays the doctor for the assessment and report, but questions often arise surrounding the employee patient’s entitlement to review the prepared report. We regularly encounter doctors who are also privately employed as the patient’s own GP.
To assist you, here are some of the most frequently asked questions about employer requested reports. The following underlying basic principles will also apply:
Before carrying out an assessment on a patient for any purpose whatsoever at the request of a third party, it is imperative that a doctor obtains consent, both to the assessment, and to treatment, if applicable. Furthermore, it must be made clear to the patient that the information obtained by the doctor during the consultation will be provided to a third party. It is not a confidential consultation.
Best practice is to obtain a written consent from the individual attending. A consent form can take the following form:
“Your employer has asked me to review you today to see if you are fit to return to work or I have been asked by the solicitors acting on behalf of X company to prepare a report as part of their defence to your case against X.
I will send a report of my findings to (the HR Manager or the solicitors) at the end of this consultation. I will only include information that is relevant to the assessment. I will discuss my findings with you so that you will know what I will say in my report and you can ask me any questions that you may have about my diagnosis.”
Any private patient is entitled to write a letter to a doctor to seek a copy of personal information held about them. Personal information includes all records, blood tests, or letters received from hospitals or consultants specifically identifying the patient.
Once a request (generally called a data access request) is received, a doctor is required to:
When a doctor agrees to carry out an assessment of a patient on behalf of an employer client, as a matter of best practice, the doctor should inform the employer in advance that they may have to provide copy of the report to the patient, pursuant to Data Protection legislation requirements.
The Guidance on Ethical Practice for Occupational Physicians - a report from the Faculty of Occupational Medicine at the RCPI - reminds doctors of the require-ment to confine the report and advice to the purpose of the report.
If a doctor obtains consent to provide a third party with a report regarding a patient, such consent is limited to the scope of the assessment and review.
All the queries that we have received relate to company nominated doctors and requests for reports received from companies and employers looking for information on situations including:
Q. If a doctor is asked by an employer client to review an employee who has been injured at work, is the patient entitled to a copy of the report under any circumstances?
At the time of an accident/incident:
A-1. If the examination and assessment takes place on the day (or days) following the accident, the employee is likely to be entitled to see a copy of the report. In the normal course of events, the doctor should explain to the patient:
Court proceedings are expected (contemplation of litigation):
A-2. If the employer is aware that the employee intends to issue proceedings specifically arising from a work-related injury, it is arguable that the employer may claim legal professional privilege over that report. To satisfy the requirement of “contemplation of litigation”, it is likely that the employer will need to be in receipt of an initiating letter from the employee’s solicitors. In this scenario, the employee is not entitled to a copy of the report.
For completeness, if the case is a High Court case, it is highly likely that the report will be provided to the employee or their representatives at some stage, as part of the rules of disclosure. Every report should be prepared on the basis that the employee patient will see the report at some point in the future.
There are exceptions to the rule permitting a patient to have access to a copy of the medical records/reports. This includes where it may cause undue harm, to the physical or mental health of the patient.
Note: It is not necessary to obtain the employer’s consent to the release of the record pursuant to a data access request if litigation is not in existence against the employer.
Q. What instructions should a doctor seek before carrying out an examination on a patient for a third party?
A. Before agreeing to assess any patient, a doctor should ensure that they are not conflicted.
Basic information to be sought includes:
Any other relevant information includes whether the doctor is required to assess the patient as fit to work or, whether a report is required on liability and causation, or condition and prognosis for the defence of litigation. In general this information will come from the employer’s solicitors if it relates to litigation.
Q. What happens if a doctor is preparing a report for the purpose of defending litigation and, in the assessment of the patient, identifies ma health problem?
A. At all times, a doctor is obliged to act in the best interest of the patient, irrespective of who has engaged the doctor to carry out the review and assessment.
It is imperative that if a doctor identifies a problem requiring further assessment, the patient is notified of any follow up treatment required, and a referral to their own doctor or another specialist (if appropriate) is given.
As a general rule, any report prepared by a doctor is likely to eventually be seen by the patient. Reports should always be prepared carefully and accurately to ensure that they comply with the doctor’s duty to act in the best interest of their patient.