Occupational Health Law. Diana Kloss
show that there is a real risk to vulnerable patients, the employer is entitled to exclude employees who refuse to be vaccinated from caring for those patients. All new employees should undergo a pre‐employment health assessment which should include a review of immunisation needs. Any vaccine‐preventable disease that is transmissible from person to person poses a risk to both health care professionals and their patients. All staff should be up to date with their routine immunisations, eg tetanus, diphtheria, polio and MMR. BCG vaccine is recommended for health care workers who may have close contact with infectious patients, especially in maternity and paediatric departments and departments where patients are likely to be immunocompromised. Varicella vaccine is recommended for susceptible health care workers who have direct patient contact. Influenza vaccination is particularly controversial. NHS employers have instituted comprehensive programmes to vaccinate health care workers annually against flu and have offered bonuses to Trusts that achieve a high percentage of take up of the vaccine. OH professionals are responsible for the administration of these programmes. Workers should be asked to consent in writing to be vaccinated and also to that information being given to the employer. Those who do not consent must be allowed to opt out but they run the risk that the employer can identify them if their names do not appear on the list of those who consented and may exclude them from working with vulnerable patients.
2.9 Liability to the employer
The OH professional will have a contract with the organisation which employs him, so he will have duties both in contract and in tort. If he is employed under a contract of employment, the law implies many obligations into the relationship which form part of the agreement even if nothing has been said or written. The duty of trust and confidence discussed in Chapter 7 is a good example of an implied term. One other significant duty is to take care in carrying out his job. In a case in 1956, one employee negligently injured another by reversing a vehicle into him on the employer’s premises. The employer paid compensation to the injured employee and claimed on his employer’s liability policy. Insurance companies have a right of subrogation, i.e. they take over all the rights which the insured person had when they pay out on the policy. Acting in the name of the employer, the insurance company sued the careless driver for all the loss which he had caused his employer by his negligence. The House of Lords decided that negligent employees have a duty to compensate their employer for the damages he has been forced to pay because of their carelessness (Lister v. Romford Ice and Cold Storage (1957)). After establishing the point of principle, the insurance companies indicated that they would not in future reimburse themselves by pursuing employees, unless there was wilful misconduct or collusion. Also, in the later case of Morris v. Ford Motor Co. (1973), the Court of Appeal refused to allow an insurance company to sue the driver of a forklift truck who had negligently injured the employee of a subcontractor.
Thus, where an employer is insured against liability to his employees caused by the negligence of directly employed OH personnel (as is required by the Employers’ Liability (Compulsory Insurance) Act 1969), it is unlikely that an indemnity will be obtained by the employer’s insurance company from the health professional’s protection society or professional indemnity policy. Before 1990, hospital doctors working in the NHS were required by their contracts of employment to take out policies with defence organisations so that the employer could obtain indemnity if the doctor was negligent. This system was abandoned from 1 January 1990 (HC(89)34).
2.10 Liability to the public
The health professional does not have a legal duty to provide medical care for those whom he has not accepted as patients. There is no duty in English law to act as a Good Samaritan and go to the aid of someone lying seriously injured in the street, though there may be an ethical duty, but if you do assist, you will have an obligation to take reasonable care. What if an employee of a subcontractor, or a visiting member of the public, is taken ill or has an accident on the premises where the OH doctor or nurse is at work? The BMA in The Occupational Physician advises that the OH doctor takes full medical responsibility only for those working on site, including contractors, but to the extent that he is concerned with the effect of work on health, he is advised that included therein is the health of the public at large, either in general or as individuals.
It is unlikely that a health professional would be held to owe a legal duty to the general public. His obligation to the wider community is a moral and ethical duty. In an extreme case, it might oblige him, against the wishes of his employer, to reveal dangers to the public of which they are in ignorance (Chapter 3). Mostly, of course, the OH professional is unable to do more than advise and warn, but should do whatever is reasonable in all the circumstances of the case.
2.11 Health care workers with ablood‐borne virus
Ill‐informed fears about the dangers of contracting AIDS from an HIV‐infected health professional, fuelled by worldwide publicity about the Florida dentist who allegedly infected several of his patients, led to the setting‐up by the Department of Health of the Expert Advisory Group on AIDS (EAGA) in 1985 and later the UK Advisory Panel for Healthcare Workers Infected with Blood‐borne Viruses (UKAP). This has a strong occupational health representation. The panel also gives guidance about the management of health care workers (HCWs) who have hepatitis B (HBV) and hepatitis C (HCV). Guidance has now been transferred to Public Health England. Since the last edition of this book there have been important changes in the management of HCWs with blood‐borne viruses (BBVs). Comprehensive new guidance was published in 2017 and updated in 2019: Integrated guidance on health clearance of health care workers and the management of health care workers infected with bloodborne viruses (hepatitis B, hepatitis C and HIV).
The guidance states that every HCW should scrupulously adopt safe working practices to prevent the transmission of infection with blood‐borne viruses. There are particular problems where HCWs are performing an exposure prone procedure (EPP). These are procedures where there is a risk that injury to the HCW could result in the worker’s blood contaminating the patient’s open tissues (described as ‘bleed‐back’). They include procedures where the worker’s gloved hands may be in contact with sharp instruments, needle tips or sharp tissues (for example spicules of bone or teeth) inside a patient’s open body cavity, wound or confined anatomical space where the hands or fingertips may not be completely visible at all times. Where there is doubt, expert advice should be obtained from a specialist occupational physician who may in turn wish to consult UKAP. The majority of HCWs do not perform EPPs. A risk‐based categorisation of clinical procedures has been developed, including procedures where there is a negligible risk of bleed‐back (non‐EPP) and three categories of EPPs (1–3) with increasing risk of bleed‐back. The guidance also highlights exposure‐prone environments, for example road traffic collisions and industrial accidents, where glass fragments or twisted metal may lead to laceration of the skin of a HCW in the process of attending to or retrieving a wounded casualty. Activities of emergency personnel in such environments are divided into four categories, A to D, according to the likelihood of the occurrence of bleed‐back.
All HCWs, including those who are self‐employed or employed in the independent sector, are under ethical and legal duties to patients. These are reflected in guidance from the regulators, including the GMC, the NMC and the Health and Care Professionals Council. Those who believe that they may have been exposed to infection with a serious communicable disease in their personal life, or in the course of their work, must seek appropriate expert professional advice. Those HCWs who are aware that they are infected with one or a combination of HIV, HBV or HCV must ensure that they are assessed regularly by their treating physician and promptly seek and follow expert OH advice. A failure of a professional who knows or suspects that he is infected with a blood‐borne virus to seek medical advice and act on it is regarded as serious professional misconduct by the medical, nursing and dental professions. The GMC in 1997 removed from the medical register the name of Dr Patrick Ngosa for serious professional misconduct. He was a gynaecologist who feared that he had acquired HIV from a woman with whom he had an affair,