Comments are closed. Previous Article Next Article What is the position of anoccupational health nurse when presented with anecdotal evidence that anemployee failed to declare a chronic health problem at the time of heremployment? Where does her duty lie? Readers provide the answerQ Last month we asked what readers would dowhen faced with the following problem: I am currently employed as anoccupational health nurse within a financial institution.Recently, a linemanager approached me expressing concern regarding an employee on whom I hadrecently carried out a pre-employment health assessment (by questionnaire) asbeing fit for employment.The employee has beenin post for almost five months and during this time has demonstrated a regularpattern of short-term absence totalling five episodes of nine days with adiagnosis of back pain.The manager has beeninformed, in confidence, that the employee has told her work colleagues thatshe has a chronic back problem which caused some problems in her previousemployment, although she did not disclose it on her health questionnaire infear of not being appointed to the post.The manager has askedme to disclose whether or not the employee declared her chronic back problem inher per-employment health questionnaire.What should I do?Should I disclose what the employee declared on the health questionnaire? A A number of questions should be asked: if theindividual was interviewed and she identified that she withheld thisinformation deliberately to enhance the possibility of getting the job, theorganisation needs to consider whether this is gross misconduct. I wouldsuggest that the honesty of an individual working in a financial organisationis paramount. This is, however, amanagerial decision not an occupational health one. Had the person identifiedthe problem at pre-employment, would it have made a material difference to theoutcome of the assessment? Under the DDA, reasonable adaptations to the workingenvironment should have been made to prevent this problem from beingexacerbated by the individual’s work.Has the problem causedsignificant sickness absence in the past that would indicate the probability ofcontinued sickness absence in the future? Could the organisation make the”reasonable adaptation” of allowing the individual to continue withthe same level of absence? Kloss (1998, p98) states that “If an employeelies in answer to such questions the employer may, on discovery of the truth,dismiss him, but only if the employer can show that he would not have employedhim had he known the truth and that this would have been a reasonable responsebecause of the nature of the disability and the nature of the job”(Occupational Health Law 3rd Ed: Blackwell Science). A recent EmploymentAppeal Tribunal (London Borough of Hammersmith & Fulham v Farnsworth)report in Employment Focus (Nov 2000, Issue 9 pp 5-6) states that theinformation gained by an occupational health consultant was not confidentialand he or she was not bound by any duty of confidence to the patient not todisclose details of the medical history to the employer. It is understoodthough, that the fact that both the medical questionnaire and the consent formspecifically stated that the information would be given to the council and notsimply to the doctor, played some part in the decision. It is, however, a mootpoint as the Faculty of Occupational Medicine’s Guidance on Ethics forOccupational Physicians (May 1999) states that “the individualoccupational health record is a confidential medical record to which thepriniciples of medical confidentiality apply”. This is a view echoed bythe UKCC in the Code of Professional Conduct (1992) and the Standards forRecords and Record Keeping (1993). If I received amanagement letter requesting information from the pre-employment healthdeclaration I would interview the person, determine whether the hearsay is trueand seek informed consent to disclose the information management sought. It would be yourresponsibility to point out to the individual what the likely response ofmanagement would be (possible dismissal) if there has been a failure todisclose information as well as that “the employee who is invited tosubmit medical evidence on his own behalf, and refuses, cannot complain if adecision is made on evidence which is available”. (Kloss 1998, p 233). ifthe individual, having disclosed the information, would still have beenemployed with adaptations, I would inform management that that would have beenthe case and remind them of responsibilities under the DDA that anyrecommendations that may assist in the reduction of the sickness absenceproblem could also be included in the report back to management.Amanda Dowson RGN DPS(OH)BA(Hons)Health services manager Bradford CollegeA I was in a very similar situation in one of my previous posts, where dueto the fear of not being employed a member of staff did not disclose that hehad a severe back problem resulting from a road traffic accident seven yearspreviously, that gave intermittent severe problems.After a period ofapproximately six months’ employment, he was absent for several months due toback pain. Management requested more medical information about the problem, andafter discussion with the company medical officer, a GP’s report was obtained.The RTA incident was mentioned by the GP, and the employee was subsequentlydismissed for falsifying information on the health questionnaire. The employee also putmanagement in the position of placing him in an unsuitable job, thereby makingthe company liable to prosecution. Since this incident I have incorporated adeclaration on every pre-employment health questionnaire stating, “theforegoing particulars and information given by me on the above questionnaireare to the best of my knowledge true, and that any deliberate falsificationcould result in disciplinary action or my dismissal. I agree to undergo amedical as deemed necessary, etc., etc.” which is pointed out beforesigning, thereby giving the individual a chance to discuss any medical problems.After all, it does notmean that a person is unemployable just because of a particular health problem,only that they may be required to refrain from certain aspects of a job forhealth and safety reasons. Employers have a duty of care to all employees, asan employee has the same amount of care for themselves. In this instance Ifeel the employee in question has not protected herself or the employer. In myopinion, therefore, management could be told that the employee did not discloseany information regarding a back problem on the health questionnaire, withoutbreaching confidentiality. By stating the problem was not mentioned is not, ineffect, divulging any medical information. The reason for healthquestionnaires is to establish a person’s fitness for employment in the firstplace. Unfortunately, we (occupational health nurses) become placed insituations like this more often than is acceptable, and it is a very difficultto maintain confidentiality and protect both employee and employer. Most of allwe must protect ourselves, by keeping up to date with employment law andregulations. Sylvia Fitzpatrickvia e-mailA Pre-employment assessment is a managerial/personnel issue arising from afailure to ascertain the applicant’s previous sickness absence record and theapplicant’s lack of honesty in completing the form. The OH nurse should onlyreiterate the original information she gave that “according to thepre-employment questionnaire the applicant is fit for employment”.This tells the managereverything she needs to know without breaching confidentiality. If the employee’sservices are retained, then the OH nurse should concentrate on adapting theworking conditions and environment and giving the employee support andencouragement so that she copes with her condition and keeps absence to aminimum. Anne BartlettHealth &Safety OfficerSouthampton University Hospitals NHS TrustA The majority of health questionnaires carry a health declaration thatthe employee is required to sign that states that if an employee withholdsinformation regarding their health then their contract may be subject totermination.I had a similar problem while working for an NHS Trust when a nursedid not disclose a chronic back injury on her pre-placement questionnaire. We had a departmentalprocedure that stated that all nursing applicants would be seen by anoccupational physician prior to being passed fit if they had a previous historyof back pain. I informed the manager that all nursing applicants with a historyof back pain were seen, without exception, prior to fitness, and that the nursein question had only been paper screened. I believe that this gave hersufficient information to manage the situation without breaching the client’sconfidentiality as I did not actually disclose anything that was on the healthquestionnaire. Jeremy R F Smith RGN AIIRSM BScHons (OHN)Occupational Health Advisor – Dover Harbour BoardA I would not disclose what the employee haddeclared on her health questionnaire as this is confidential information.However, I would recommend that the manager discusses the employee’s sicknessabsence with her and if the employee still does not disclose her back problemthen the manager should advise the employee that she will be referred tooccupational health for advice on sickness absence and for any support that wemight be able to give.Once the employee hasbeen referred to occupational health I would assure her that we are here tohelp her and not to lose her her job. This, from experience, will usuallyresult in a confession. If the confession is gained then I would encourage theemployee to inform her manager. I would not inform hermanager myself as it would be breaking confidentiality which would result in alack of trust and might blacken the department’s reputation. I would however,with the employee’s consent, be happy to inform the manager for her or with her.Finally, withoutdwelling on the past I would make clear the seriousness of the employee notdeclaring a health problem on the questionnaire and assure her that because shehas a back problem this does not prevent her from being employed.If done in this waythe department would then be seen as being a confidential service andsupportive to both employee and management.Julie Davis Senior NurseAdviser , Occupational Health, Hereford Hospitals NHS Trust A matter of confidentialityOn 1 Mar 2001 in Personnel Today Related posts:No related photos.
Interims vital to smoothing way for corporate change
Private crew in the driving seat