Is there any situation where consent for medical reports is not required? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
I have come across some conflicting advice regarding consents for medical reports. One source informs me that consents are required where there is a patient relationship, for example from an employee’s own GP, specialist or such like, but that it should not be required for occupational health (OH) where there should be no patient relationship.
The other source simply says get consents for everything medical. I am unsure now whether or not I should gather consents for medical tests recently undergone by some of our employees. I have asked our OH supplier, which is one source of the conflicting information; our solicitors are the other. Have you any advice?
Legal advice:
Esther Smith, partner, Thomas Eggar
You do need the employee’s consent to obtain medical information and certainly under the legislation covering medical records, there is an explicit requirement to get consent.
With occupational health, you will either be sending an employee to an external occupational health advisor (generally speaking a doctor) and this will require the employee’s consent. Alternatively, if you are seeking information from an internal occupational health advisor, consent may not be necessary as you are not asking for medical records, but simply asking for their professional opinion or information.
With testing of employees (such as drug or alcohol testing) this is not quite the same as medical reports or records but you should of course get consent. The test results are less likely to require permission because although the test relates to an employee, it has been requested by you and is therefore your information, although you will have obligations to maintain the confidentiality of it as personal sensitive data under the Data Protection Act 1998.
I hope this helps, but it is difficult to be definitive without knowing exactly what you are trying to obtain.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
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Martin Brewer, partner and employment law specialist, Mills & Reeve
Under the Access to Medical Reports Act 1988, the employee’s consent is needed only if the medical report is prepared by a medical practitioner who has had the clinical care of the employee.
Thus, disclosure of medical reports from independent medical practitioners do not require the employee to consent before such disclosure. This is because, under the Act, a ‘medical practitioner’ is specifically defined as a person who has had clinical care of the employee.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
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