Medical Reports, Access To

Key points

• An employer will often ask an employee – or a job applicant – for permission to approach his (or her) family doctor (or GP) for a report on his recent medical history and current state of health. This is acceptable so long as the employer first informs the person concerned of his (or her) statutory rights under the Access to Medical Reports Act 1988.
• An employer may have a number of reasons for wanting to see a medical report on an employee (or prospective employee). Very often, an offer of employment will be subject to the receipt of a satisfactory medical report. It could be that a job applicant has an unsatisfactory health or attendance record. If an employer has it in mind to dismiss a long-serving employee on health grounds, he should not take the matter further without first obtaining a report from the employee's doctor . Furthermore, there are certain industries or processes where people with specific health problems (eg, asthma or dermatitis) should not be engaged in work involving exposure to hazardous substances.
• It has always been an employee's (or job applicant's) prerogative to refuse to allow his (or her) employer (or putative employer) to make any direct approach to his doctor. A doctor will not willingly disclose information about a patient without that person's express permission.
• The whole business of seeking and obtaining a report on an employee's state of health was put on a statutory footing on 1 January 1989 when the Access to Medical Reports Act 1988 came into force.
• In broad terms, the Act gives any person applying for a job, and any person already in work, the right:
  1. to agree or to refuse to allow his (or her) employer (or prospective employer) permission to approach his doctor for a medical report on his state of health;
  2. to intercept any medical report prepared by his doctor for employment purposes;
  3. to challenge the accuracy or relevance of any of the information given in the medical report;
  4. to attach a statement of his own views to the medical report (if, in the event, his doctor refuses to amend it) before it is sent to the employer;
  5. to refuse to allow the medical report to be sent to the employer; and
  6. to be given access to any medical report supplied for employment purposes during the previous six months.

Meaning of 'medical report'

• Under section 2(1) of the Act, a medical report is a report on the physical or mental health of an individual prepared by a doctor or physician who is or has been responsible for his or her clinical care. In this context, the word care means any 'examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment' (ibid.).
• For most people in employment, their family doctor or GP is the doctor normally responsible for their clinical care. Company doctors, and other doctors specifically nominated by an employer, may carry out routine or occasional medical examinations of employees when asked to do so. But they are not responsible for the clinical care of the employees they examine. If they diagnose a health problem in a particular employee (or job applicant) they will urge that person to make an appointment to see his or her own doctor. A company doctor will not willingly intrude on the relationship which exists between a patient and his usual doctor.
• It follows that a medical report prepared by a company doctor will not normally fall within the scope of the Access to Medical Reports Act 1988. An employee or job applicant will have no statutory right of access to that report and no right to stop the report being sent forward to his or her employer or would-be employer.
• An employer cannot compel an employee (or job applicant) to submit to a medical examination for employment purposes. But he can refuse to engage any person who refuses to attend a pre-employment medical examination. Indeed, he may have no choice but to dismiss an existing employee who unreasonably refuses to be medically examined either by his or her own doctor or one nominated by (and paid for) by the employer. Contemporary health and safety legislation often includes provision for the routine health surveillance of employees engaged in hazardous work. Thus, regulation 6 of the Management of Health & Safety at Work Regulations 1999 imposes a duty on every employer to provide his employees with such health surveillance as is appropriate 'having regard to the risks to their health and safety'. Paragraph 30 of the accompanying Approved Code of Practice adds that health surveil- lance procedures can include 'clinical examination and measurements of physiological or psychological effects by an appropriately qualified practitioner'.

The contents of medical reports

• While the Access to Medical Reports Act 1988 accepts that an employer may have good reason for wanting a medical report on an employee's state of health, it recognises also that some medical reports may contain information which could prejudice a person's chances of finding and keeping work.
• Does an employer really need to be told that a job applicant is homosexual or that he once had a sexually-transmitted disease? Should a doctor tell an employer that one of his staff has the HIV virus or an alcohol or drug-related problem?

  Note

  Principle 5 of the data protection principles in the Data Protection Act 1998 states that personal data must not be processed (eg kept on file) for longer than is necessary, given the reason for securing that data in the first place. Information which relates to an employee's physical or mental health or condition or his sexual life falls within the category of 'sensitive personal data' and should not be processed other than in accordance with the 1998 Act.

• In the final analysis, it is up to an employee's (or job applicant's) own doctor to decide whether such information should be supplied – given the nature of the employee's job and the questions raised by the employer. What the 1988 Act does is give an employee the right to intercept his (or her) doctor's medical report, to challenge the relevance or accuracy of some of the information contained in the report, to ask his doctor to remove any prejudicial or irrelevant information, to add his own comments and, as a last resort, to refuse to allow the report to go forward.

Procedure

• In the text that follows, the expression employee should be taken to include job applicant; and the expression employer to include prospective employer.
  If an employer wishes to apply to an employee's own doctor for a report on his recent medical history and current state of health he must:
  1. notify the employee in writing that he wishes to make the application;
  2. obtain the employee's written consent (reminding him at the same time that he has the right under the 1988 Act to withhold that consent);
  3. advise the employee (again in writing) that he has the right also to see the medical report before it is supplied (even if he has previously indicated that he does not wish to see it); to ask his doctor to amend any part of the report which he considers to be inaccurate, misleading or irrelevant; to attach his own written comments to the report if his doctor is unwilling to alter the report; and (in the final analysis) to refuse to allow the report to go forward;
  4. make sure that the employee understands that it is his responsibility (and his alone) to approach his doctor and arrange with him to see or take a copy of the medical report before it is sent forward, emphasising that he must do so within 21 days after the date of the employer's application.
  When applying to an employee's doctor for a medical report, the employer should not only confirm that the employee has consented to his doing so, but must also indicate whether the employee wishes to be given access to the report before it is sent.
• If the employee does not exercise his (or her) statutory right to see the report within 21 days after his employer's application to his doctor, the doctor need wait no longer and can send the report to the employer. If the doctor has been told that the employee does not wish to preview the report, he (or she) is free to send it as soon as it is ready. The employee can change his mind about not wanting to see the report. But he will need to act swiftly if he is to have any chance of intercepting the report before his doctor mails it to the employer.

Exceptions

• The 1988 Act recognises that a doctor may be reluctant to show some parts of his (or her) medical report to a patient if doing so would cause distress. The medical report may, for example, indicate that the man or woman is suffering from an incurable illness or that major surgery is required. In those circumstances, the doctor may either withhold the report from the employee altogether or allow him or her to see only parts of it. If he adopts either course, he must write to the employee explaining what he has done and his motives for doing so. At this point the employee may refuse to allow the report to go forward.

Enforcement of the 1988 Act

• If an employee or job applicant is denied (or seems likely to be denied) his (or her) statutory rights under the 1988 Act, he may apply to the county court (or sheriff 's court in Scotland) for an order directing his employer or doctor to comply with the relevant requirement of the Act. A refusal to comply with the terms of any such court order would be a contempt of court.