A GP with an interest in occupational health is asked to provide a medical report to a company on one of its employees.
The GP's instructions state that he is not to share his report with the employee, and that any request by the employee to see the report should be directed to the company's human resources (HR) department
The employee is not registered at the GP's practice.
Complaints of inaccuracies
The GP examines the employee, writes up the assessment and sends it to the HR department. As requested, the GP does not offer to provide the employee with a copy of the report before submitting.
The employee later obtains a copy of the report from the company, complains that it is inaccurate, and that it has caused her to lose her job.
The above scenario, adapted from recent calls to MPS's telephone advice line, demonstrates the potential harm that might result from disclosure of individuals' medical histories.
It also highlights difficulties that may be faced by doctors asked to write such reports.
Since the days of Hippocrates, doctors have been aware of the importance of confidentiality. As illustrated above, the potential for harm to patients where their medical details are disclosed is great: finances, insurance and other relationships might all be detrimentally affected if such information is shared outside the clinical team.
Along with this need to maintain confidentiality, doctors recognise the duty to share information with their patients, to seek consent before giving information to outside agencies or bodies, and to offer to correct any inaccuracies in the records they hold.
These duties, arising directly from a doctor-patient relationship, may appear relatively straightforward. Indeed, doctors called upon to provide medical reports about their patients have long been the subject of statutory safeguards on accuracy and confidentiality under the Access to Medical Reports Act (1988).
It is this statute that requires patients to be offered a copy of their report as well as being given the opportunity to review its contents before it is sent to the organisation that has requested it.
However, while most GPs feel comfortable dealing with issues of confidentiality in a purely clinical context, matters may seem less clear-cut when the relationship is not one of doctor-patient.
The legal requirements set out in the Access to Medical Reports Act do not directly extend to doctors writing reports on individuals who are not their patients. However, given the nature of these documents, and the similarity with reports produced by patients' own doctors, it seems a logical progression that doctors should owe a similar duty in such circumstances.
This is reflected in the GMC guidance Confidentiality, which was updated in October 2009.
The guidance now explicitly covers reports prepared for insurers, employers or for government departments or agencies assessing clients for welfare benefits. Not only should doctors ensure that appropriate consent has been obtained, but they should also offer to share the report with the subject, before it is passed to the third party concerned.
The GMC makes clear that a doctor should withhold a report from its subject only where this is necessary to prevent serious harm to the health of that individual or another person, or the disclosure of information about a third party. Any deviation from has the potential to give rise to criticism by the GMC, if a complaint is made.
However, while the GMC guidance places a professional responsibility on doctors, the law has itself remained essentially unchanged. This has meant, in some cases, a continuing gap between the expectations of employers, insurers and other instructing bodies, and the doctors accepting instructions from them.
As in the case of the GP example above, the MPS is aware of some doctors who have been asked to provide employers with medical reports on individuals, but who have been told not to disclose the contents of their report to the subject.
In other cases, working methods have prevented prompt disclosure. For example, this has occurred where online submission or strict time deadlines pose difficulties in ensuring individuals receive their report before it is shared with an instructing organisation.
Both of these situations have the potential to lead doctors into conflict with their professional duties.
MPS's advice to doctors who do this type of work is to check any instructions carefully before agreeing to provide a report - and to raise any concerns formally at the earliest opportunity. Doctors should take all practicable steps to adhere to the GMC guidance, and exercise particular caution if it appears that a client does not fully understand what is to be included in the report.
Any doctors finding themselves in a position of potential conflict should contact their medical defence organisation for individual advice.
- Dr Godeseth is a medico-legal adviser at the Medical Protection Society, www.medicalprotection.org/uk
An individual's finances, insurance and other relationships may be affected if medical information about them is shared outside the clinical team. So GPs should: