CHAPTER 30: Ethics in Occupational Medicine
Unlike other branches of medicine where a straightforward two-party relationship -- doctor/patient -- exists, in occupational medicine third parties are involved. If an ethical code is deemed necessary in the simple two party situation, it becomes even more relevant in occupational medicine.
Before getting specific to occupational medicine, let's explore the underlying need for any sort of professional code of ethics. Physicians belong to one of the three traditional professions (doctors, lawyers and clergymen). In essence, what sets a profession apart from other occupations is the power members of the profession have over the destiny of others. Physicians have the power to alter people's lives and in some situations literally have the power of life and death. Thus a special code of behavior over and above what might be demanded by law is necessary to further guard against a member of a profession taking advantage of this power. The key underlying principles in all medical codes are, the patient's interests must always come before those of the physician's and the doctor serves a noble cause, i.e., preserving life and promoting health.
The occupational physician, unlike other physicians, exercises power over people in the presence of third parties who may try to influence its use. The occupational physician, bound by the ethical constraints of the doctor/patient relationship, must make rational decisions about employee welfare within the context of the employer/employee relationship. Some would argue the traditional doctor/patient relationship is subtly or even overtly altered in occupational medicine because the interests of the employer must be served as well. This is not so because, to serve the interests of the employer, which one assumes seeks fair-minded and objective advice, the occupational physician must have credibility and have the trust of the employees. The power of the physician is well known to employees, so if there is any sign of it being misused the physician will not be able to perform his/her role in any meaningful way for either the employee or the employer. In chapter 23 a practical and ethical approach to fitness-to-work examinations was outlines and in chapter 25, health surveillance.
Central to the ethical behavior of the occupational physician is how occupational health information is handled. To avoid conflict and mistrust between the physician, employees and employer, it is essential a written policy and procedures be available to all concerned from the CEO to the newest of recruits. These must safeguard the rights of employees, recognize the rights and obligations of the occupational health professional and at the same time allow employers to make responsible decisions and achieve productive results. These policies and procedures must be in place whether the occupational health services form part of the organization or are being contracted from outside. The critical questions that must be addressed in the policy and procedure documents are: who are the members of the occupational health staff, what is the content of the occupational health record, (i.e. occupational health information), who has ownership, where and for how long is it stored, who has access and what may be disclosed to whom.
Occasionally occupational physicians or nurses enter into a strictly commercial relationship with an organization to act solely in its best interests. In this situation the occupational health professional, acting as the organization's agent, is not attempting to act in the employee's best interests, i.e. there is no doctor/patient relationship. There is nothing unethical with this arrangement, as it in effect stands outside of the code, but this agent arrangement must be made known to the employee. It is essential this type of role be clearly differentiated from the role of the occupational health physician commonly found in practice and which is being outlined here.
Occupational Health Staff
The occupational health staff includes physicians, nurses and paramedics, and clerical support staff under the direction of the licensed physician or nurse. It is important to recall that these staff members enjoy a position of trust and neutrality in the organization, thus they are expected to act in ways that balance the rights and obligations of the employees with those of the company as a whole without compromizing ethical codes.
The content of the occupational health record varies from place to place but usually contains a medical history, work history, preplacement medical record, fitness-to-work assessments and advisements, progress notes, technical records (laboratory studies, work hazard exposure records and biological monitoring results), consultant's report and other sundre pieces of information. The occupational health record should not be confused with medical records developed on employees participating in voluntary health promotion programs. Such records will contain a wide array of medical information, none of which has any direct bearing on the employment relationship and as such is the property of the employee who agreed to participate voluntarily in the program.
Ownership and Storage
Ownership of the occupational health record, physical or electronic, is considered to rest with the organization or individual who caused and paid for it to be made.
In workplaces with in-house occupational health services, the occupational health record is stored in a secure area within the occupational health centre. If the record is electronic there should be a dedicated computer located in the occupational health centre. If the records are stored on a mainframe located outside the occupational health centre, the records must be secured by foolproof access codes. All occupational health records should be kept for a minimum of 40 years or 20 years after retirement. These times are based on an estimate of a normal working lifetime with the potential for hazardous exposures and the latency factor of occupational diseases.
If occupational health services are obtained from outside consultants, as would be the case in small industry, the occupational health record should remain under the guardianship of the occupational health consultant who developed it.
In the situation where an organization goes out of business or ceases to exist, the records, whether developed by a private occupational health consultant or company occupational health service, should be transferred to the medical services section in the government service responsible for worker health and safety.
Unrestricted access to all parts of the health record is limited to the occupational health professionals and those who report directly to them.
Employees have unrestricted access to the following parts of their own record: medical history, work history, fitness-to-work advisements, pre-placement medical record and technical records. Other parts of the record may require interpretation by the occupational health professional or contain opinions sought from others whose permission must be obtained before revealing it.
Established medical codes and laws are not helpful on the question of a person's access to their own health record, but in actual practice, there is rarely a circumstance where an employee wouldn't be permitted to have complete access to his/her own file.
Employer representatives are often concerned with restricted access to employee health records, especially because it is generally accepted the employer owns the record. It's in this situation where real conflict between the occupational health professional and the employer can occur. Some employers mistakenly believe they need access to the record to make employment or workplace hazard decisions. The fact is employers don't need detailed medical information but rather require fitness-to-work judgments such as fit, unfit, or fit subject to work modifications, and interpretations of workplace hazard exposures, such as the nature of an environmental workplace monitoring result or the result of a biological monitoring test.
From an occupational health professional's point of view the rules for disclosure of any part of the health record are clear. Ordinarily, disclosure of any part of the occupational health record will require the written or verbal consent of the employee. Exceptions include emergency health threatening situations, where disclosure is required by law, and where it is demmed by the occupational health professional to be in the employee's best interest. But even when a disclosure is made under these exceptional circumstances, the employee must be informed in a timely way. Keep in mind that fitness-to-work advisements, while forming part of the occupational health record, also form part of non-medical records of the company (chapter 23), and thus do not require an employee's permission for disclosure. The principles underlying these rules have been quite clearly stated in the various codes published by the American, British and Canadian Medical Association.
An employer does not have the legal right to require a health professional to disclose health information. A 1979 Canadian supreme court decision by Mr. Justice Pigeon addressed this situation by stating in part "an employee's duty of obedience towards the employer does not mean the latter has any power to compel the employee to act in breach of a duty of confidentiality". The judge was dealing with a case where an employer wanted an occupational health professional who was also an employee to reveal health information about another employee. This case is of great significance because it tackled the question of an employer trying to use employment control over the occupational health professional to force the exercise of medical powre to the advantage of the employer. Clearly the court sided with the occupational health professional's right and obligation to stand with the code of confidentiality.
Employers have an obligation to protect employee health and safety and to respect the employee's right to privacy of personal medical information. Privilege allows lawyers to refuse to reveal information given to them in confidence by a client. Physicians and nurses, while they do not legally enjoy "privilege" as do lawyers, have traditionally practiced their profession as if they did enjoy privilege. In day to day practice it is assumed by both the patient and the health care professional that information passed in the course of a medical interaction will remain confidential.
Professional codes of ethical practice, the Hippocratic Oath, and Provincial Health Disciplines Acts, all support this assumption in their demand that proper professional conduct includes a requirement that personal medical information be kept as confidential unless its release is authorized by the patient or is required by law. The patient may authorize the release of medical information either by written or verbal consent. Under emergency, life threatening or serious injury situations this consent is not necessary. (An example of a medical release of information authorization is found in Appendix I.) Occupational health professionals, regardless of their own employment relationships, must adhere to these codes and laws in order to establish and maintain their credibility with workers and, indeed, to maintain their licenses to practice. Employers who maintain an occupational health service or who consult with occupational health professionals must understand and respect the need to adhere to these codes and laws. The fitness-to-work process discussed in Section 13, allows the occupational health professional to provide effective direction to an employer, to manage the employee-employer relationship without the need to use medical terminology or divulge a diagnosis.
Occasionally, non-physicians or nurses will need to know certain types of health related information. In the case of personal injury, whoever is responsible for accident prevention or first aid will need to know many details about the injury. Occupational hygienists in certain circumstances need to know the results of biological monitoring. As a general rule, levels of substances measured in body fluids (e.g. blood lead) that can only be present due to an occupational or environmental exposure and which are not normally found in the body can be disclosed. However, the level of a substance, e.g. blood glucose, that is normally present in the body remains confidential. If a worker is a participant in a biological monitoring program he or she must be informed of the purpose of the monitoring and the results of any tests. Abnormal results from such a program should lead to a thorough review of the employee's health, the working conditions and the way in which a job is being done. The results of a biological monitoring program must never be used to adversely affect an employee's employment relationship. If a level is high enough that the employee needs to be removed from the job, good business practice would mean that the employee's income would be maintained either by transfer to another job, workers' compensation or some form of disability insurance.
Workers have a right to be informed of the hazards that they may be exposed to in the work place. They can learn of the hazards by individual instruction or by the hazards being posted in the work place and on any materials being used.
It is generally accepted that the medical record belongs to whomever caused it to be created. This means the employer actually owns the physical or electronic record. Access to this record, however, is strictly limited to the occupational health professionals and their support staff. Not even the employee has full and unrestricted access to the medical record. The employee has a complete right to any laboratory and biological monitoring results, medical diagnosis and fitness to work judgements. Clinical notes, preliminary opinions, and consultants reports that are not ultimately relevant to the employee's working relationship, however, should be revealed only at the discretion of the occupational health professional in charge of the record or on subpoena by a court of law. In the situation where a private physician provides consultative occupational health services to an employer, the record often remains in the possession of the private physician. Arrangements that these records will not be destroyed and that they will be transferred for confidential storage by the employer upon demand must be made because such records should be maintained for at least forty years after the employee has left the company.
Employers must establish strict procedures for the maintenance, storage and disclosure of health information. If this is done well, employer-employee trust will be established and the occupational health professionals can function in a highly professional and ethical way. Such procedures serve and protect the legitimate rights of all three parties.
Authorization for Release of Medical Information (30.1)
I, ______________________________, hereby authorize _________________________
to release the following medical information about me:
to the following person(s)/organization(s);
I give my permission for this medical information to be used for the following purposes:
I do not give my permission for any other use or re-disclosure of this information and this authorization is not effective beyond the following date: __________________________.
Signature of person authorizing release
Signature of Witness Date of Signature
American Occupational Medical Association. Code of Ethics for Physicians Providing Occupational Medical Services. Chicago, 1976.
Ashford NA, Spadafor CJ, Caldari CC. Human monitoring: Scientific legal, and ethical considerations. Harvard Environ Law Rev 1984; 8:263-363.
Bok S. The limits of confidentiality. Hastings Center R, February 1983, pp.24-31.
Canadian Medical Associations. Basic Principles for the Provision of Occupational Health Services. Ottawa,19??????
Conrad CC. Biomedical ethics: Unique issues for preventive medicine. Washington, American College of Preventive Medicine, 1982.
Ethics in occupational medicine. Lancet 1980; 2:134.
Karrh B. The confidentiality of occupational medical data. J Occup Med 1979; ???????
Lee JS, Rom WN, eds. Legal and Ethical Dilemmas in Occupational Health. Ann Arbor, Michigan, Ann Arbor Science, 1982.
Morgan RH, et al. The responsibility to report occupational health risks. J Occup Med 1977; 19:?????
Morton W. The responsibility to report occupational health risks. J Occup Med 1977; 19:??????
Nethercott JR. Confidentiality and the right to know. Occup Health in Ontario 1984; 5:2-9.
Reiser SJ, Dyck AJ, Curran WJ, eds. Ethics in Medicine Cambridge, Massachusetts, MIT Press, 1977.
Sammons JH. Access to employee exposure and medical records: A statement of the American Medical Association in the Occupational Safety and Health Administration. J Amer Med Assn 1978;240:2175-2176.
Warshaw L. The malpractice problem and the occupational physician. J Occup Med 1977; 19:??????