Employee Consent – A thorny issue?

Employee Consent and Health Information

When managing the health of an employee, one of the biggest areas of possible contention is that of Consent. There can be a real issue around gaining the consent of the employee to share the contents of a report with either HR or with their Line Manager.

The Nursing and Midwifery council (NMC) code states that a nurse must respect an employee’s right to confidentiality and that information must not be disclosed about a person without their consent. It must be appreciated that if a nurse breaches that confidence they risk losing their license to practice.
It is worth remembering the following:

  • A nurse can reveal anything, with the consent of the employee.
  • If the employee refuses to give to give consent the nurse should not break confidence unless it is necessary to protect others.

Under ‘common law’ employers have a duty of confidence to employees, just as nurses do to their clients. Confidentiality can only be breached if:

  1. There is a legal duty which overrides the duty of confidence meaning that the employer or the nurse will have no choice but to break that confidence
  2. It is unequivocally in the public interest
  3. It is necessary to safeguard public security to prevent a serious crime
  4. It will prevent a serious risk to public health

Is there any point in referring an employee for health support?

In our experience, less than 2% of employees who are referred for Employee Health Management refuse their consent. Approximately 5% of employees ask for the report not to be shared with their Line Manager but are happy for it to be released to HR.

Our Nurse Case Managers have the experience and training that helps them to overcome disclosure objections. They can:

  • explain to an employee that reasonable adjustments to working hours can help them in their daily working activities.
  • remind the employee that small adjustments in the workplace such as an anti-glare screen fitted to their VDU, or a hearing loop fitted to a telephone can make the working environment more user friendly.
  • make employees aware of the protection afforded to them under the Equalities Act, particularly Disability Discrimination, and the bullying and harassment provisions.
  • help the employee understand the limited support that the State provides to ill or disabled people and how it is better to remain in the workplace, with the support of the NCM and their employer than it is to become unemployed and reliant on welfare benefits.

The barrier to gaining consent is generally related to fear; fear of dismissal, fear of ridicule, fear of being a nuisance and sometimes fear of what a diagnosis might bring. Our skilled NCM’s can allay these fears. They can explain how the law can protect individuals with long term medical conditions, point the employee to support groups and charities, and simplify medical jargon. They are also very useful in mediation with HR.

They can help the employee to re-engage with the workplace, which almost always is a much cheaper and a much more responsible alternative to turning straight to dismissal.

Medical Confidentiality and the issues of gaining consent to share information can be a problem, but doesn’t need to be a barrier.

Karen Gamble
Head of Client Relations
HCB Group
August 2017

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