Occupational Health Law. Diana Kloss
hygiene procedures employed in every case, as with exposure‐prone medical and surgical procedures, should the health professional consider breaching confidence in the interests of others to whom they owe a duty of care.
Whether or not there is a legal duty to warn third parties, there may be an ethical duty. Suppose that a doctor or nurse becomes aware that a colleague is a risk to patients? The General Medical Council (GMC) in Good Medical Practice 2019, paragraph 25, states:
If you have concerns that a colleague may not be fit to practise and may be putting patients at risk, you must ask for advice from a colleague, your defence body or us. If you are still concerned you must report this, in line with our guidance and your workplace policy, and make a record of the steps you have taken.
Secondly, the OH professional has a duty of care towards any worker who approaches him for advice or assistance in a professional context. A careless diagnosis, an inappropriate prescription, a failure to refer someone for specialist advice can all constitute negligence. For example, Mrs Sutton went for a health check to a Well Woman Clinic. She told the nurse who examined her, Nurse Hancock, that she thought she had a lump in her breast. The nurse could not feel it, so she did not refer the matter to a doctor as she ought to have done. It was held that the nurse was negligent because she should not have taken upon herself the role of diagnostician. Her employer, a private health organisation, was held vicariously liable despite her disobedience to instructions: she was still acting in the course of her employment as a nurse. The damages were low in this case because the judge found that all that would have been achieved by an earlier referral was a few more years’ life (Sutton v. Population Services (1981)).
The House of Lords in Spring v. Guardian Assurance (1993) reviewed the potential liability of referees (not the sporting kind!). The plaintiff was an appointed company representative of the defendants for the purpose of selling their investment products. He was dismissed. He then applied for a job with another company. Under the rules of the regulatory body at the time, LAUTRO (now the Financial Conduct Authority), the new employers had to seek a reference from the previous employer. Having received an unfavourable reference, they refused to employ him. The reference was negligently prepared. It stated that Spring was a man ‘of little or no integrity and could not be regarded as honest’, but this was based on one incident which the employers had failed properly to investigate, and which, if they had, disclosed no dishonesty on Spring’s part. The House of Lords, reversing the decision of the Court of Appeal, held that an employer who gave a reference in respect of a former employee owed that employee a duty to take reasonable care and would be liable to him in negligence if the employee suffered damage through failure to take reasonable care.
This case raises very important issues with respect to medical reports. Is a doctor or nurse writing such a report potentially liable in negligence to the subject of the report? Is there a duty of care? A report written by one health professional to another for the purposes of treatment is subject to a duty to take reasonable care. A consultant who negligently gives the wrong advice to the patient’s GP who in consequence prescribes the wrong drug would be liable to the patient in negligence. Also, a health professional or hygienist who negligently performs screening tests could be held liable to the worker whose early symptoms or overexposure go unmarked. But occupational health reports are mostly not of this kind. They represent the opinion of the OH professional as to the competence and ability of the worker to do a job and have financial rather than medical consequences. The occupational physician is asked to write a report on the fitness of a pilot but confuses two employees and attaches the alcoholic’s report to the pilot’s records. In another example, the doctor negligently advises the employer that a worker is fit to work, and therefore malingering when he takes sick leave, because the doctor has negligently failed to make a careful examination and to appreciate the worker’s true medical condition. Spring v. Guardian Assurance is House of Lords authority that a referee can be held liable in negligence for economic loss and was followed in principle in Baker v. Kaye (above) in that, if on the facts of the case the court had held that Dr Kaye had been negligent, the plaintiff would have been awarded damages. The later decision of Kapfunde v. Abbey National (1998) has cast doubt on whether the principle should be applied in a pre‐employment context, at least where the doctor has not seen the job applicant, but has given advice only on the basis of a pre‐employment questionnaire, but is not relevant to a report relating to an existing employee rather than a job applicant.
The OH professional must also have the employer’s interest in mind, because a medical report which is carelessly written in the job applicant’s favour, resulting in the employer taking on an unreliable employee, might give rise to an action by the employer. The health professional owes a duty of care to the employer pre‐employment. For negligence to be established, it would be necessary to show not just that the professional’s assessment of the worker in question was at fault but that there had been a failure to do what a reasonable professional would have done. An example would be a report of a pre‐employment medical examination which stated that an employee with obvious symptoms of a serious heart condition was in the best of health.
Doctors in particular should be warned that it is not merely the content of their writing which needs attention. James Prendergast, an asthmatic, was prescribed Amoxil by his doctor. The writing on the prescription was so illegible that the pharmacist dispensed Daonil. The judge held that both the pharmacist and the doctor were negligent. The doctor had a duty to write clearly and the pharmacist should have checked with him because the dosage prescribed was unusually high for Daonil. The GP was 25 per cent and the pharmacist 75 per cent responsible (Prendergast v. Sam and Dee (1988)).
2.5 The duty of candour
In 2014, as a result of the findings of the inquiry chaired by Robert Francis QC into failures of care at Mid‐Staffordshire Hospital, legislation was passed to regulate health care and social care providers: Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. These regulations do not apply to providers of occupational health services. Regulation 20 imposes a legal duty of candour on providers of care, that is a duty to inform patients or their relatives when something has gone wrong and to express sorrow and regret. The regulations are enforced by the Care Quality Commission which has power to bring a criminal prosecution for a breach. Although Francis recommended that health care professionals should also be subject to a legal duty to notify their employer of a failure of care, it was decided that the effect of imposing criminal sanctions would have the opposite effect, that is to make it less likely that an individual would report errors and failings to their manager. However, if mistakes are to be corrected it is important that management is made aware of them and for that reason the GMC and the Nursing and Midwifery Council (NMC) made a joint statement to all their members of their ethical obligations: Openness and honesty when things go wrong: the professional duty of candour (2015).
Every health care professional must be open and honest with patients when something that goes wrong with their treatment or care causes, or has the potential to cause, harm or distress. They must:
tell the patient (or where appropriate the patient’s advocate, carer or family) when something has gone wrong;
apologise to the patient (or where appropriate the patient’s advocate, carer or family);
offer an appropriate remedy or support to put matters right (if possible); and
explain fully to the patient (or where appropriate the patient’s advocate, carer or family) the short and long term effects of what has happened.
They must be open and honest with their colleagues, employers and relevant organisations and take part in reviews and investigations when requested. They must support and encourage each other to be open and honest and not stop someone from raising concerns.
2.6 Duties under the Equality Act 2010
The great majority of complaints of unlawful discrimination taken to employment tribunals name the employer as the respondent, but the OH professional may also be potentially liable.