Help please : employee withholding consent to medical records

[CutieBob]

I have asked an employee to complete an employment health questionnaire which contains a section consenting to occupational health obtaining a copy of her medical records from the GP.

The employee has completed the form but refused to sign the part consenting to the release of her medical records. The forms states that an employee can withhold consent.

I've referred this to HR but haven't heard back. Can anyone advise what we could or should do now? I have reasons to believe that the employee isn't being completely truthful with the information that they have provided in the form and is worried that the medical records will reveal this.

Thank you.

OP you still haven't explained why you want the records. This is pretty crucial.

Yes, this is why I suggested some training on employment law.

What job are they doing and why do you need access to their medical records?
I wouldn't tick the box to allow access to my medical records. I'm honest about my medical history, I have a chronic disease and will answer questions about it especially in relation to my ability to work but that doesn't mean I will release my complete medical history to an employer. I am happy for my GP to answer specific questions.
Why do they need to know about my miscarriage/ teenage arm break / GF etc? I will tell you of anything pertinent to my job, everything else is nothing to do with you.
It's not only the privacy but also the fact that you may Misinterpret the fact that my records are so large with the fact that you may have a problem with sickness absence but they are large because I have had a long term condition for most of my adult life that is monitored heavily but due to good management by docs and me means that I actually have had less sickness leave than my 'healthy' colleagues.
I was once turned down for a job in the early stages of my career by a company director who assumed that I wouldn't be able to cope because of this (not based on fact just what he thought he knew) ... He begged me to join their company last year as I'm now very very good at what I do, have a great professional reputation and it's a very specialist role, he obviously didn't remember me or that interview but I did and reminded him of it. I told him I would never work for his company and would happily tell others why not.

Before piling in and calling her request outrageous and saying she is in need of training, why not wait and find out why the OP needs this consent?

If it's a request of an employee just about to start work and there is no reason the records are actually needed, that's one thing.

But if the OP is trying to manage a very challenging sickness absence situation with an uncooperative employee, and is trying to get meaningful medical advice hampered by the possibility that pertinent information is being withheld, then asking what she can do in those circumstances is a perfectly valid question.

I think some people just love an excuse to criticise.

There are such private things in my medical notes it hurts my doctor knows never mind an unimportant transient person in my life.

You say they can refuse. She's refused. Deal with it.

The forms states that an employee can withhold consent ... Can anyone advise what we could or should do now?

Nothing. You allow the employee to withhold consent, she has done exactly that.

This thread upsets me as the OP seems to think she should have access to very private information of a human being that happens to be in their employee. I can't imagine a role that justifies full access to a person's medical details.

I would find it hard to believe full access to medical records would be allowed anyway, its hard enough accessing your own.

The OP hasn't said she wants to see the medical records, the forms asks if Occupational Health (qualified doctors or nurses with additional training in medical health) can see the medical records NOT the employer.

My staff have a job that has many aspects that a disability may prevent them from doing or that might exacerbate a disability - long periods of sitting, VDI work, dealing with public in contentious situations and very physical climbing, lifting and getting in and out of small spaces. We make a lot of referrals to OH, if an employee does not want to disclose their medical records to OH then that is fine but we will only make adaptations of adjustments for disabilities that OH confirm/support.

Well said flowery - there are an awful lot of assumptions being made here. I hope that the OP will come back!

Hello, I'm really sorry for starting a thread and then disappearing. I've had an awful sickness bug over the weekend and am only just feeling better.

Many thanks for the input so far.

Just to clarify, I don't want access to the medical records - it's a consent for occupational health to get a report from the GP. This situation is a little unique in that I'm fairly new in post and have found that my predecessor had not requested that recent new starters complete the usual health forms. This means that anyone who started with us within the last 12 months has been asked to complete them retrospectively.

The employee is a good worker - nice person, fits in well and good at her job. The problem is that her sickness absence record since joining is poor and I have reason to believe that some of the information stated in the health questionnaire isn't entirely true and that this is the reason why she doesn't want OH to obtain a report from her GP.

I hope this clarifies things can you can help, thanks.

A medical report can't be requested just to catch her out in relation to her pre-employment questionnaire.

However, it might be appropriate to request one to consider whether an employee who has taken a substantial number of short-term intermittent absences is suffering from any underlying medical condition.

In the absence of consent, you will need to look at her employment contract to see if she is required to consent to such medical reports. If she still declines to consent, you cannot compel her to consent - your only remedy may be disciplinary proceedings.

If there is no requirement for her consent in her employment contract, again, you cannot compel her to consent - and you may have no remedy against her for her refusal to consent.

There are very strict guidelines on what can / cannot be asked for, and all sorts of legislation come into play here.

You need to tread carefully here.

So she is being referred to OH for her sickness absence and has been asked for consent for them to seek a report from her GP for background?

I would suggest you emphasise that while she is free not to consent, OH's advice will be more helpful both to you and to her in terms of supporting her with this background than it would be without.

However if she is seeing OH anyway, and you're not purely basing decisions about whether to discipline her on a report from her GP then I wouldn't worry as much.

I would suggest you speak to the OH adviser beforehand so that he/she understands the nature of your concerns.

You need proper employment law support with this but just to confirm with everyone (I'm an employment lawyer) that this is completely standard. If you send an employee to OH you do not need their consent to see the report since they are not under the regular care of the OH practitioner. If you need a report from their GP or access to their medical records then you have to have consent since they have a regular relationship with the GP. The normal process is to send the employee to OH rather than go straight to the GP since this is easier (although more expensive).

Ultimately, if the employee won't give the information and access then there is nothing you can do about this but it is in their interests to cooperate since if you can't access the information then you are entitled to make a decision in the absence of the medical information (i.e. based on the information you do have i.e. this employee isn't fulfilling heir contractual duties since they are absent too frequently).

HR will become more aggressive in their approach if an employee refuses to consent. The assumption will be that there is something to hide.

I can totally accept that it is legal, and even sometimes desirable, for OH to access a report from the employee's doctor. It was just that in the original post that the OP made, before clarifying, it really did sound like the OP felt that the employee should agree to throw open their medical records to OH, rather than engage with OH to deal with a specific issue.

As in, access the medical records as standard, rather than as part of an ongoing process, should it ever get to that stage.

I believe in UK you can self certify oneself off work as sick for 5 working days without going to a doctor. After that a doctors note should be sufficient to explain reason for absence

There should be a company policy to help manage reoccurring sickness

Surely OH cannot have full access to an employees entire health records !

I believe if someone is off sick alot, the company may need to put things in place to help eg training, working from home, reduced working hours, special tools etc it may depend what ailment that person suffers from

I suppose the employee may need to disclose some aspects about their illness, so that some help can be provided

That's incorrect. The employer will in many cases ask for access to the employee's medical records.

This is a situation where the employee is off long term sick or with a condition affecting attendance, not just a couple of days off with the flu!

gosh, atticuslaw - when you say the employer will in many cases ask for access to the employee's medical records, would that be for occupational health to have access for a specific and defined purpose - or would HR and / or the line manager be having access to these records?

It really depends on the circumstances. Sometimes only limited access will be given and the irrelevant stuff will be redacted but often the full print out is sent. Sometimes the report won't have the notes themselves attached but the information will be given in the body of the report.

The information will often go to occupation health but there will not always be an OH service/department in which case the information would go to HR. The employee will be told how the information will be handled.

If you have an employee with a long term condition or one which impacts regularly causing frequent absences then the employer really needs to have detailed information about the condition in order that it can make an informed decision as to whether to terminate the employment or whether a duty arises to make reasonable adjustments. If an employee won't give their consent to the medical information being released then a decision has to be made based on what the employer already knows (and this is generally not in the interests of the employee)

Employers are not allowed open access to an Employees Medical Records - however a Report may be requested from either the Employees GP or another Doctor involved in the case, for example Occupational Health.

The GMC are clear that informed and explicit consent for this i.e. written must be given. This consent which can be withdrawn at any time must be in writing and the Employee can see the report before it is sent to the Employer, add notes if they disagree with the content and even withdraw consent if they wish at that point i.e. before it is sent to the Employer.

As a PP mentioned there are many Legal aspects to this not just Employment Law.

Even if your Boss was a Consultant Dr in the specific area of health concern open access to an Employees Medical Records would not be allowed!

As for open access by any other Manager or even HR that would also be totally inappropriate as they are not Clinically Qualified and therefore not in a position to make informed judgement on the information, leaving themselves wide open. That is what Occupational Health are for! If necessary this service can be outsourced by external small businesses (not cheap though).

OP has already had excellent advice on this thread. The Employee in question has under two years service so can be dismissed for any reason with no comeback so it is in their interests to engage with the sickness absence process, including this request by OP, however that said - OP if they have a health condition covered under the Equality Act you could then be accused of discrimination, but only if you knew about the relevant condition beforehand.

Tread carefully and get proper advice!

Does the OH Dr actually want a GP report? Or do you want a box ticked just in case? I work in OH and IME it's very rare that we ask for them.

If the OH Dr hasn't asked for it, I'd just leave it. Chances are one won't be needed anyway.

Employers are sometimes terribly suspicious that people aren't giving them the whole picture. Usually it's just misunderstanding which can be easily clarified by a report from an OH physician.

But consent is everything these days. If someone doesn't want their employer to know something, neither the GP nor an OH physician will disclose it. Unless there's a safety critical /safeguarding issue.

I don't think they have to declare previous medical problems to their employer before starting a job. The Equality Act changed a lot of things in 2010. Some employment contracts do have clauses though that say people have to agree to see OH if they've had x amount of time off sick.