Dr Gerard Panting of the Medical Protection Society explains the obligations involved and pitfalls to avoid when putting your name to a document


   

General practitioners are approached by patients for certificates of their fitness, or lack of fitness, to undertake a wide variety of activities. Sometimes that service attracts a fee from the patient or a third party, often it does not. In any event, the doctor must assess the patient properly before issuing a certificate – the consequences of a cavalier approach can be severe.

It is certainly an issue which the GMC takes seriously.1 Their advice is:

'You must be honest and trustworthy when writing reports, completing or signing forms, or providing evidence in litigation or other formal inquiries. This means that you must take reasonable steps to verify any statement before you sign a document. You must not write or sign documents which are false or misleading because they omit relevant information. If you have agreed to prepare a report, complete or sign a document or provide evidence, you must do so without unreasonable delay.'

One GP was arrested at his home, taken to the police station and charged with conspiracy to obtain British passports by deception. Eleven charges were brought under Section 36 of the Criminal Justice Act 1925. The allegations were that the doctor had not known the passport applicants for the requisite period of time, or had not seen them at all before signing documents which enabled them to obtain British passports.

The doctor was found guilty and sentenced to 6 months' imprisonment. The conviction was reported to the General Medical Council and the doctor subsequently arraigned before the Professional Conduct Committee (PCC). The determination of the PCC was as follows:

'By law, doctors' signatures are required, or accepted, on certificates of various kinds on the presumption that the public can trust in the truth of any statement which a doctor has certified. The Committee take a serious view of the offences of which you are convicted because they show that you have been prepared, on payment of fees, to abuse that trust in a cynical and irresponsible manner.

'The Committee have felt bound to consider whether your conviction would justify a direction to the Registrar to suspend your registration or to erase your name from the Register. However, the Committee have also felt able to take account of the custodial sentence imposed by the court, the representations made on your behalf, your expressions of regret, the assurances given as to your future conduct and your lengthy and previously unblemished career.

'They have accordingly determined on this occasion to admonish you in the strongest terms and to conclude the case. In thus concluding your case, however, they wish me to emphasise that, if you should ever appear before them on another occasion to face a charge of similar gravity, you should not expect to be treated so leniently again.'

Patients who are unfit to work may claim state benefit or claim against private insurance policies. However, occasionally, the GP may not be convinced that the claim is bona fide.

Patients claiming sickness benefit may be assessed by doctors working on behalf of the DSS – referral forms can be found in Fmed3 pads. Where a claim is made against an insurance policy, the referral route may be less clear but if the GP cannot in all conscience support the claim, the patient's agreement should be sought to recommend an appropriate independent assessment. Sensitive though these situations are, it is important to avoid collusion with fraudulent claims – the duty of professional confidence cannot be distorted to require doctors to be party to dishonesty.

Obtaining written consent

Before embarking on an examination, the doctor must ensure that patient consent has been obtained in writing. In its booklet Seeking Patients' Consent: the Ethical Considerations,2 the GMC stipulates that where providing clinical care is not the primary purpose of the investigation and examination, written consent should be obtained.

When undertaking examinations on behalf of third parties, including employers and insurance companies, there are two issues to consider. One is consent to the examination itself and the second is disclosure of the report to the third party.

For consent to examination to be valid, the examinee must fully understand the nature and purpose of the examination, including significant consequences for his or her employment, social or personal life as a result of the report. Insurance companies and employers often request information about patients from doctors who are, or have been, responsible for their care. In these circumstances, the Access to Medical Reports Act 1988 applies.

When a company decides a medical report on an individual is necessary, it is the responsibility of the company to contact the patient and request his or her consent and to set out the individual's rights under the Act.

When giving consent the examinee should state whether or not he or she will require access to the report. The consent and decision on access are then notified to the doctor.

If the patient requires access to the report, he or she has 21 days from completion of the report to make appropriate arrangements to see it. If there is no request for access or no arrangements are made, the report can be dispatched to the company.

Examinees requiring access can authorise dispatch of the report, request alterations prior to dispatch, make their own comments to be attached to the report or refuse to allow the report to be dispatched to the company. Where amendments are requested, GPs should not allow themselves to be cajoled or persuaded into making changes which render the report inaccurate but should correct any factual inaccuracies and be prepared to consider rephrasing parts of the report if they appear misleading.

Disclosure of reports must be strictly within the limits of the authority granted by the examinee, as illustrated by the following recent case.

In Cornelius v de Taranto,3 a forensic psychiatrist who had been instructed to complete a medical report for the purposes of litigation obtained the patient's consent to refer her to another psychiatrist for assessment and treatment but did not obtain express consent to disclose the report to the second psychiatrist and the patient's GP. The patient objected, claiming that there were factual inaccuracies in the report, and was awarded damages for the hurt feelings occasioned by unauthorised disclosure of the medico-legal report.

The Data Protection Act

Unlike the Access to Medical Reports Act which applies only to reports completed for insurance or employment purposes by doctors who are or have been responsible for the patient's care, the Data Protection Act 1998 applies to all medical reports about identifiable living individuals.

The Data Protection Act introduced sweeping changes to the law governing all aspects of processing information about identifiable individuals, setting out eight data protection principles that controllers of personal and sensitive personal data are required to follow.

Data subjects have rights of access and correction where data are inaccurate, are entitled to an explanation of the uses to which the data may be put and may receive redress, including financial compensation, where rights have been infringed.

Doctors should assume that patients will have access to anything written about them, including medical records and reports, and ensure that they are accurate and worthy of independent scrutiny.

Signing certificates or reports takes just seconds and it is tempting, especially when under pressure, to assume that the contents are correct. However, if they are not, failure to check can have devastating consequences for the doctor.

References

  1. General Medical Council. Good Medical Practice. London: GMC, May 2001.
  2. General Medical Council. Seeking Patients' Consent: the Ethical Considerations. London: GMC, November 1998.
  3. Cornelius v de Taranto [2001] EMLR 329.

Guidelines in Practice, June 2002, Volume 5(6)
© 2002 MGP Ltd
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