How do we deal with non-consent for OH reports?
One of the questions I often get asked by managers is what happens if an employee does not consent to release of the occupational health report?
Consent requirements for medical reports
By law, an individual needs to consent to the sharing of their medical information. This means that in occupational health, we cannot release our report to you without the explicit informed consent of the employee. In my experience of over 25 years in occupational health, having written and been responsible for sending out hundreds, if not thousands of reports, I can count on one hand the number of times that an employee has withheld consent from me sending the report.
Reasons for non-consent to send an occupational health report
One of the main reasons employees may ask to withhold consent is that they don’t want the organization knowing any of their medical details, especially as some of the information can feel very personal, or they may fear the information will be “used against them” or they may feel they would be stigmatized or treated differently. In many of these cases the reason for this is often due to an underlying breakdown in a working relationship or trust in the organization. Other reasons given for non-consent may also be because the employee doesn’t agree with, or like, the advice given by the OH Practitioner e.g. the employee may believe that they are fit for work, but the OH Practitioner does not, or the employee may believe they aren’t fit for work, but the OH Practitioner does. In cases of work-related stress, especially when there is a relationship difficulty with their manager, individuals can also be reluctant to have that information “on record” in a report, as they sometimes feel this could make the situation worse for them.
How we deal with non-consent in occupational health
The purpose of the occupational health report is to provide managers with relevant information on the health condition, how it affects the individual at work, and types of support that could be put in place to help them at work. If I speak to someone who has concerns about giving consent, I try to understand their reason for this, and explain the benefit to them of providing advice to their manager. If they don’t consent, then managers have to make decisions without the benefit of medical information. This could lead to an employee not being offered appropriate support at work which may not be beneficial to the employee in the long-run. If they don’t like or agree with our advice, I try to understand why this is the case, and provide a medical rationale for the advice I have given, and explain that we have to provide an impartial opinion based on the medical evidence.
I believe that in many instances, the more information a manager has about how the medical condition affects the individual in terms of symptoms and the impact of those symptoms on their functional ability at home and work, the easier it can be for them to fully understand the nature of that condition, empathise and provide more tailored support to the individual. Therefore, I encourage individuals to share information such as diagnosis and symptoms, however, it is recognized that some individuals do not want managers to have such level of detail. The purpose of our occupational health assessment is to assess the individual from a medical perspective, take into account the organisation’s perspective and concerns, and provide an opinion on an individual’s fitness to work and recommendations for adjustments or support. Therefore, as long as we have taken the appropriate medical information into account when forming our opinion, it is possible for a certain level of medical detail to be left out, however, in most cases, some level of detail is likely to be relevant and beneficial in supporting a manager to better understand the circumstances and I would always discuss this with the employee.There is also an obligation for the OH practitioner to advise the organisation if there is a significant safety risk to the individual or public, if the employee is at work, and this would also be discussed with the employee before disclosure.
I have spoken with a number of individuals over the years, that have raised concerns about providing consent, however, once their concerns have been understood and addressed, and they understand the potential downsides to their manager making decisions in a vacuum, they are usually happy to provide that consent.
How should a manager deal with non-consent
If the employee is adamant they don’t want to provide consent, this puts you as the manager in a difficult position. You will then have to make decisions regarding possible absence or performance-related problems without the benefit of medical advice. If an employee is not performing or is off sick, you may not know if the employee has a health condition, may not know how to support that individual appropriately, and hence the individual may be managed through an absence or performance process without the benefit of advice on appropriate support or adjustments that could help that individual. Decisions will need to be made on the only information/evidence that you as the manager has, which could include length of absence, number of absences and any performance-related problems or concerns for safety or welfare of that individual or others. This may lead to decisions being made, that may not necessarily have been made if you had the benefit of medical information.
If you have a possible safety concern, and an individual has not consented to release of medical information, then you have a duty of care to obtain as much information as possible, and then make a decision on whether or not to restrict that individual from certain tasks until appropriate medical information can be obtained. You will need to justify why you have made that decision. Types of evidence are likely to include observed behaviours at work, if you already have some knowledge on the particular health condition and possible effects of that condition, and any relevant information/conversations you have had with the employee or their colleagues.
If you are in this situation, or have had an employee not consent to an occupational health report being released, please feel free to contact us and we can advise you on how you could manage the situation with the limited medical information you have.