Abstract
Here, along with consideration of expert psychiatric evidence in cases of disputes between employers and employees and in pension cases, we deal with its relevance to disability discrimination in the context of employment, but expert psychiatric evidence may also be sought where the issue is disability discrimination in other contexts.
However elastic the notion of execution of duty might be, it cannot be stretched wide enough to encompass stress related illness through exposure to discipline procedures.
Here, along with consideration of expert psychiatric evidence in cases of disputes between employers and employees and in pension cases, we deal with its relevance to disability discrimination in the context of employment, but expert psychiatric evidence may also be sought where the issue is disability discrimination in other contexts.
General Considerations
Find out for whom the report is intended, particularly if it is a non-clinician, as this will influence how informed consent is obtained and the report’s structure and content.
What Is Required in Preparation?
This can vary considerably. An OHP may refer an employee and provide no more documentation than a brief letter, in which case the report should make clear the opinion’s limitations. A solicitor in employment tribunal proceedings will provide a range of records and other relevant evidence.
The Instruction
An OHP will almost always require an opinion as to an employee’s ability to render efficient service consequent upon any mental disorder. Likely questions are set out in Box 13.1.
Box 13.1 Typical Instruction from Occupational Health Physician
1. What is the current diagnosis under the ICD/DSM?
2. What is the prognosis for the condition(s) identified above?
3. Has treatment for the above condition(s) to date been optimal? What could be done to improve the condition(s)?
4. Are there any maintaining factors, particularly work-related, which are preventing recovery? What can be done to remove them?
5. How long will it take to bring about a substantial improvement in the condition(s) if further changes to the treatment plan are suggested?
6. What additional obstacles to recovery remain and what can be done to remove them (including likely timescales for possible return to work)?
7. Is a return to work likely and, if so, when and in what capacity? What adjustments are likely to be required in the short, medium and longer term?
Consent and Confidentiality
Health professionals as a general rule should not disclose confidential information to a third party without the patient’s informed consent. The common law also imposes a duty of confidentiality, as does the Human Rights Act 1998. There are exceptions, including where there is a statutory duty, where there is a court or tribunal order and where public interest overrides the duty of confidence (e.g. W v Egdell [1990] 1 All ER 835 – see Chapter 11, ‘Confidentiality’).
Consent must be informed (see Chapter 5, ‘Introducing Yourself, Explaining and Obtaining Consent’). If the employee lacks capacity to give consent, a discussion should take place with the instructing party. It may be that a report should still be provided in the best interests of the employee, subject to the provisions of the MCA or equivalent legislation, or, if there is prospect for improvement, delayed until such improvement manifests and consent can be given.
The GDPR need cause no difficulty. The Faculty of Occupational Medicine’s Ethics Guidance for Occupational Health Practice (FOM 2018) advises that GDPR provides a number of different justifications for processing personal data; consent is only one. It is perfectly feasible to register under an alternative justification, such as a legitimate interest or public health. The fact that consent is not given as a lawful basis for processing personal data does not mean that you do not need to obtain the data subject’s consent because the common law and the ethics of the health professions are still in force and require consent other than exceptionally.
There is debate about whether the doctor in the UK should show the report to the subject before sending it to the commissioner, so it is wise to explain your approach to consent when first accepting instructions, so as to avoid later disappointment. In Ireland, there is no provision for advance disclosure.
Where the Report Is Required for Litigation
Where you are an expert witness with a primary duty to the court or tribunal and the person has agreed through their solicitor for the report to be made, it is unnecessary to show it to them before sending it to the instructing solicitor. In Kapadia v Lambeth LBC [2000] 6 WLUK 180, Kapadia claimed that the Council, his employer, had discriminated against him because of a disability. The employer was not convinced of his disability and asked for an examination by a consultant OHP, to which Kapadia consented. The Court of Appeal held in passing that the physician, as an expert witness, was not required to disclose the report to Kapadia or his solicitor for their approval before sending it to the employer’s solicitor and giving evidence in the tribunal, as he had consented to examination on behalf of the employers.
Where an OHP is instructed as an expert not previously involved to report to the employer for the purpose of actual or contemplated litigation, the OHP needs the employee’s consent to interview them, and/or review their records and report to their employer’s solicitors. Such consent, which includes consent for the report’s disclosure to the employers, does not impose a duty to show it to them before sending it to the employer’s solicitors. If the employee later demands this, as in Kapadia, the employer’s solicitors should raise the issue with the tribunal judge, who has power to order the employee to agree to disclosure and to strike out the claim if he or she refuses.
Where the Report Is Requested for Employment or Insurance Purposes
Where a report is requested for employment or insurance purposes, the Access to Medical Reports Act 1988 provides that written consent must be obtained from the patient, who must be allowed to ask for access to it before it is sent to the employer or insurance company and at that stage to withdraw consent. This only applies to a request for a report from a doctor who is, or has been, responsible for the patient’s clinical care; it does not apply to a report from a doctor not responsible for clinical care, such as an expert witness or an OHP.
Where the OHP Is Reporting, or an Independent Expert Is Advising the OHP, after a Management Referral in the UK
In 2009 (GMC 2009), and repeated in 2017 (GMC 2017a; GMC 2017b), the GMC advised that occupational physicians, before reporting to management, should offer patients a written copy of their report and allow a reasonable time for them to consider it before submitting it to management unless:
they have already indicated that they do not wish to see it;
disclosure would be likely to cause serious harm to the patient or anyone else; or
disclosure would be likely to reveal information about another person who does not consent.
This is also included in the FOM’s guidance. However, Tamin (2010) has argued that offering sight of the report to the subject before the commissioner, thereby providing the opportunity to suppress it, is morally wrong. Nevertheless, there is a counter-argument that this ignores the fiduciary obligation to put the patient’s interest first. However, ‘the GMC appears to be the only professional body in the world that has introduced a new guidance that enables patients to gain privileged access to their occupational health reports in advance of the commissioning parties’ and its stance ‘also stands in stark and striking contrast to that in many other jurisdictions’ (Wong and Choong 2013).
Where the OHP is reporting after a management referral in the UK, or an independent expert is advising the OHP, the GMC and FOM guidance should be applied. A patient who refuses to sanction the report’s release can be advised that an employer is entitled to proceed without the benefit of medical advice in the best interests of the business (O’Donoghue v Elmbridge Housing Trust [2004] EWCA Civ 939) and that although legally obliged to make reasonable efforts to obtain medical advice where there seems good cause to do so, that duty ends if the employee prevents this.
As to the extent to which the subject may wish to amend or comment upon the report, correction of factual errors is clearly appropriate, but long, detailed commentary on the facts or opinions may entail significant redrafting. This may be disproportionate or irrelevant. Where there is a risk of consent being withdrawn if the expert refuses amendment, a compromise, if the subject consents, is to send the report with the commentary appended.
Recent ethical guidance from the FOM (2018) advises that where an employee has asked to see the report before agreeing its release, a standard opt-out approach permits release after two to three days if nothing is heard. However, in the more contentious case, the prudent clinician will obtain additional written or email consent to its release after amendment. However, no consent is needed to tell an employer that the subject has withdrawn consent, or indeed failed to attend the appointment. However, some occupational health providers have contracts to provide a medical report within a tight timetable that does not sit comfortably within the legal requirements of consent. Resist bending the rules on consent to accommodate these pressures and inappropriate expectations.
Where the Report Is Required in Relation to a Pension Scheme
Difficulty arises where reports are requested by an OHP on behalf of a pension scheme, or its trustees for advice on suitability for ill-health retirement, the award of an enhanced pension, or on whether retired police officers are eligible for an injury on duty award. Such reports are not part of litigation, employment tribunal or other legal proceedings, but equally are not advising their employer on the management of an employee’s state of health.
Where expert medical evidence is required in relation to an ill-health retirement pension, especially when the procedure is laid down in statutory regulations, the opinion of Kloss (2015) is that this is a special case: arguably the medical expert may be in a position analogous to that of an expert witness. As Wong and Choong (2013) have observed: ‘The right [to veto release] would … introduce bias. A patient who has been assessed not to meet the medical criteria for an early pension release due to ill-health … could choose to veto its release … and seek a more favourable opinion from another doctor.’ An employee applying for a pension ought not be able to withdraw consent to the report’s submission because they disagree with it. In any event, many schemes provide that assessment and review of entitlement is subject to submission of reports; the default position usually being the refusal or cesser of entitlement in the event of non-compliance.
But the expert in such cases is in a difficult position. The position of the GMC is unclear and experience shows that often commissioners lack sufficient knowledge of these matters. Most experts will not want to be the test case where a complaint is made to the GMC that consent has been breached by reporting to pension trustees without allowing them to withdraw their consent for the report’s release. You have three options: (1) find out from the commissioner if the report is to be furnished without prior review and/or approval, (a) if it is, and the subject refuses, there is no consent to prepare the report, (b) if the commissioner is agnostic on the point or is satisfied that a report be furnished subject to prior review and/or approval, there can be no complaint if it is not then furnished; (2) offer the subject a written copy of their report and allow a reasonable time for them to consider it, but make it clear to the commissioner that you will be doing so; (3) do not take on such cases.
The consequences of (1) refusal of consent simpliciter, (2) refusal of consent to furnishing the report without prior review and/or approval, if the commissioner insists otherwise and (3) refusal of consent to furnishing the report, following prior review and/or approval, are quintessentially matters for the commissioner and the relevant scheme. If the subject refuses to consent to an unsupportive report being sent to the pension trustees, the answer is for the trustees to refuse the pension or the application for the award.
Where the Report Is Commissioned by Another Medical Practitioner Exercising Quasi-Judicial Functions
When an expert psychiatrist is instructed by a ‘selected medical practitioner’ (SMP) (or the ‘duly qualified medical practitioner’) under police pensions regulations to provide a report in relation to permanent disablement and injury on duty, fair procedures will require that it be disclosed to the subject of the report, in any event. However, the expert should still adopt the approach set out above in relation to pension scheme reports. Specific guidance for SMPs regarding report provision does not apply to experts providing reports to assist SMPs.
The Assessment
You may have to decide to assess the subject alone or accompanied, particularly if brought by a union representative. Although it is generally considered good practice to allow someone of the subject’s choice in certain circumstances (see Chapter 5, ‘Should Anyone Else Be Present?’), have regard to the effect that this may have on the consultation because:
A psychiatric assessment explores an individual’s personal history, revealing sensitive information which may be unknown to others. In the presence of another, the subject may be reticent to provide relevant information. Alternatively, information revealed at interview may cause embarrassment subsequently.
A psychiatric assessment and exploration of mental state can be hampered by the presence of a third party.
A third party can be distracting.
Formulating the Case
Most letters of instruction ask specific questions, each of which requires a response or an explanation for the omission. Where one exists, provide a diagnosis based upon either ICD or DSM (see Chapter 8, ‘Diagnosis’). Make a clear distinction between distress and disorder. Employment cases commonly bring forward individuals with disparate emotional symptoms and associated illness behaviour and sickness absence who do not meet the diagnostic threshold for mental disorder.
Emotions such as anger, antipathy and embitterment towards an employer may be the consequence of perceived bullying or harassment or the result of a long unresolved period of sickness absence. Embitterment has been proposed as a condition in its own right (Linden 2003). It is linked to some perceived organisational injustice, and a breakdown in the abstract contract of trust between employer and employee. It carries a very poor prognosis as recovery, or the prospect thereof, requires a formal acknowledgement of wrongdoing by an employer who may see the facts quite differently.
In employment cases, there may be a hidden agenda. The employee will often furnish a detailed account of their perceived mistreatment or the context to their sickness absence, but there may be other facts which have not been disclosed. It is preferable to concentrate on the development of symptoms of psychological distress or mental disorder and their significance, rather than get drawn into any of the proposed causes. If there are relevant employment issues, include consideration of the role of management, alongside any specific treatment, in the report.
An understanding of the job role, informed by the job description, can inform your opinion as to what reasonable adjustments it may prove practical to suggest.
The report should summarise the treatment to date. Sometimes, a subject’s account will include CBT, but in fact they have only had supportive counselling, or CBT delivered too infrequently to be effective. Be precise on these issues. They can also impact on ill-health retirement criteria and pension applications. Treatment recommendations should be based on mainstream guidance and the literature. An employee may decline treatment. Where this is understandable and due to lack of insight from mental illness, state this clearly, otherwise there can be adverse consequences. Employment law assumes that a sick employee will do all they can to recover; all claimants are expected to mitigate their losses.
When advising on prognosis, it is not just the recovery time from any current disorder, but the timescale for a return to work and then their likely future ability to render effective service. There are often powerful psychosocial/maintaining factors which can distort the normal prognosis for mental disorder and it is often useful to separate the two processes, emphasising that management intervention is needed for the latter for which clinical treatment can offer very little. Differentiate if possible between the prognosis of any diagnosed mental disorder and any maintaining factors which might affect that prognosis, such as alleged bullying at work.
It is particularly difficult to predict permanence when an employee is many years short of statutory retirement age. Most psychiatric disorders go into remission with adequate treatment, so a judgement must be made as to why someone with a potentially treatable disorder may be permanently unable to resume their employment. You will need to set out your reasoning in detail. Remember that the test is the balance of probabilities. There is no requirement for certainty, nor that the subject has exhausted every treatment possibility. You may also be asked to determine permanence in relation to the employee’s current role or for any employment or until statutory retirement age.
Related posts:
Chapter 3 – Training, Development and the Maintenance of Expertise
Chapter 4 – Business Matters
Chapter 9 – Reports for Family Proceedings Relating to Children
Chapter 10 – Reports in Cases Involving Capacity Issues
Chapter 11 – Reports for the First-tier Tribunal (Health, Education and Social Care Chamber) Mental Health
Chapter 17 – Going to Court
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