Читать книгу Occupational Health Law - Diana Kloss - Страница 47

OH professionals have a two‐fold duty to the work‐force. Since they have no contract with the employees (the contract is with the employer) their duty flows only from the law of tort (delict in Scotland). In the first place, they assume a broad obligation towards all those employed by the employer while at work. The OH professional is in one sense like a general practitioner who has accepted patients on to his list. The list comprises all the workers in that part of the workplace over which he has jurisdiction. He only undertakes to care for the workers while they are at work and he does not usually promise to provide treatment other than in an emergency. Lest this be thought so onerous a duty as to deter any from the practice of occupational medicine, remember that the duty is to take reasonable care, the care that an average professional would take in all the circumstances, taking into account available resources and the degree of risk. A doctor who only visits a factory for one afternoon a week cannot be reasonably expected to monitor the health of the entire workforce in every particular. In medical negligence suits, the ability of the doctor to bring evidence that he is supported by the opinion and practice of other doctors even if there is an opposing school of thought is very good evidence that he has acted with reasonable care (Maynard v. W. Midlands RHA (1985)).

What if the doctor or nurse becomes aware that an employee is suffering from a disease which he may communicate to other workers or is in some other way a danger – a disturbed patient who is threatening violence, or a driver who is taking addictive drugs? The health professional may have a positive duty to breach confidence for the protection of others and may be liable in negligence if he does not do so. Just as the physician had a duty to warn Mr Stokes about the cancer‐inducing mineral oil, he might have a duty to tell him (or at least the human resources department) that the man working next to him in the factory is an unpredictable alcoholic (Chapter 3).

The American courts have held a doctor, employed in a university counselling service, liable for not warning a young woman student that one of his patients had murderous intentions towards her, which he had confided to the doctor. After she was murdered by the patient, her parents sued the doctor. The court held that he was negligent in not breaking his patient’s confidence (Tarasoff v. University of California (1976)). In English law, by contrast, a doctor is not usually responsible for the wrongful acts of an adult. For example, in Palmer v. Tees HA (1999) a mentally ill patient who was receiving out‐patient treatment at the defendant hospital brutalised and murdered a little girl. The mother sued the hospital for negligently failing to confine, supervise or otherwise control the patient concerned, but the hospital was held to have owed her no duty of care in the circumstances. The choice of the victim was fortuitous and therefore there was no proximity between the hospital and the child. There may, however, be a special case where, as in Tarasoff, the potential victim is identifiable. In the Canadian case of Pittman Estate v. Bain (1994) a doctor was held liable to the wife of a patient for failing to warn the patient that he was HIV‐positive, with the result that his wife also contracted HIV. Would the answer have been the same had the doctor informed the husband of his HIV status, but knew that the husband was keeping the information from his wife? Would the doctor be under a duty to breach the husband’s confidence in order to protect the wife? It is unclear what attitude the English courts would adopt to such a situation. Certainly, our courts would probably not hold a doctor liable for breach of confidence if he did decide to disclose the fact of her husband’s HIV status to his wife, because that would be a disclosure in the public interest (Chapter 3).

In ABC v. St George’s Healthcare NHS Trust (2017) a patient was diagnosed with Huntington’s disease, a genetic condition that is invariably fatal. A child of a carrier has a 50 per cent chance of inheriting it. The patient forbade the doctor to inform his children of his illness and the doctor respected his confidence. After giving birth to a child, the patient’s daughter discovered the situation by chance, was tested and was found also to be a carrier. She sued the hospital stating that, had she known the truth, she would have aborted the child. The Court of Appeal found that it was arguable on principle that the doctor owed a duty to the daughter to inform her of the situation even if that involved breaching her father’s confidence. The case was therefore allowed to proceed to a trial of the facts. If the claimant succeeds, the principle that in some cases a doctor has a legal duty to breach patient confidentiality where there is proximity between the parties may be established.

If a doctor knows that a worker is carrying HIV, is he negligent if he does not reveal it to those with whom the worker comes into contact? The medical evidence is that it is virtually impossible to transmit the virus through normal contact, so that in almost every case it will not constitute negligence if management and fellow workers are kept in ignorance. Only if there is a real risk of contact with contaminated blood or body fluids which cannot be avoided by standard hygiene procedures employed in every case, as with exposure‐prone medical and surgical procedures, should the health professional consider breaching confidence in the interests of others to whom they owe a duty of care.

Whether or not there is a legal duty to warn third parties, there may be an ethical duty. Suppose that a doctor or nurse becomes aware that a colleague is a risk to patients? The General Medical Council (GMC) in Good Medical Practice 2019, paragraph 25, states:

If you have concerns that a colleague may not be fit to practise and may be putting patients at risk, you must ask for advice from a colleague, your defence body or us. If you are still concerned you must report this, in line with our guidance and your workplace policy, and make a record of the steps you have taken.

Secondly, the OH professional has a duty of care towards any worker who approaches him for advice or assistance in a professional context. A careless diagnosis, an inappropriate prescription, a failure to refer someone for specialist advice can all constitute negligence. For example, Mrs Sutton went for a health check to a Well Woman Clinic. She told the nurse who examined her, Nurse Hancock, that she thought she had a lump in her breast. The nurse could not feel it, so she did not refer the matter to a doctor as she ought to have done. It was held that the nurse was negligent because she should not have taken upon herself the role of diagnostician. Her employer, a private health organisation, was held vicariously liable despite her disobedience to instructions: she was still acting in the course of her employment as a nurse. The damages were low in this case because the judge found that all that would have been achieved by an earlier referral was a few more years’ life (Sutton v. Population Services (1981)).

The House of Lords in Spring v. Guardian Assurance (1993) reviewed the potential liability of referees (not the sporting kind!). The plaintiff was an appointed company representative of the defendants for the purpose of selling their investment products. He was dismissed. He then applied for a job with another company. Under the rules of the regulatory body at the time, LAUTRO (now the Financial Conduct Authority), the new employers had to seek a reference from the previous employer. Having received an unfavourable reference, they refused to employ him. The reference was negligently prepared. It stated that Spring was a man ‘of little or no integrity and could not be regarded as honest’, but this was based on one incident which the employers had failed properly to investigate, and which, if they had, disclosed no dishonesty on Spring’s part. The House of Lords, reversing the decision of the Court of Appeal, held that an employer who gave a reference in respect of a former employee owed that employee a duty to take reasonable care and would be liable to him in negligence if the employee suffered damage through failure to take reasonable care.

This case raises very important issues with respect to medical reports. Is a doctor or nurse writing such a report potentially liable in negligence to the subject of the report? Is there a duty of care? A report written by one health professional to another for the purposes of treatment is subject to a duty to take reasonable care. A consultant who negligently gives the wrong advice to the patient’s GP who in consequence prescribes the wrong drug would be liable to the patient in negligence. Also, a health professional or hygienist who negligently performs screening tests could be held liable to the worker whose early symptoms or overexposure go unmarked. But occupational health reports are mostly not of this kind. They represent the opinion of the OH professional as to the competence and ability of the worker to do a job and have financial rather than medical consequences. The occupational physician is asked to write a report on the fitness of a pilot but confuses two employees and attaches the alcoholic’s report to the pilot’s records. In another example, the doctor negligently advises the employer that a worker is fit to work, and therefore malingering when he takes sick leave, because the doctor has negligently failed to make a careful examination and to appreciate the worker’s true medical condition. Spring v. Guardian Assurance is House of Lords authority that a referee can be held liable in negligence for economic loss and was followed in principle in Baker v. Kaye (above) in that, if on the facts of the case the court had held that Dr Kaye had been negligent, the plaintiff would have been awarded damages. The later decision of Kapfunde v. Abbey National (1998) has cast doubt on whether the principle should be applied in a pre‐employment context, at least where the doctor has not seen the job applicant, but has given advice only on the basis of a pre‐employment questionnaire, but is not relevant to a report relating to an existing employee rather than a job applicant.

The OH professional must also have the employer’s interest in mind, because a medical report which is carelessly written in the job applicant’s favour, resulting in the employer taking on an unreliable employee, might give rise to an action by the employer. The health professional owes a duty of care to the employer pre‐employment. For negligence to be established, it would be necessary to show not just that the professional’s assessment of the worker in question was at fault but that there had been a failure to do what a reasonable professional would have done. An example would be a report of a pre‐employment medical examination which stated that an employee with obvious symptoms of a serious heart condition was in the best of health.

Doctors in particular should be warned that it is not merely the content of their writing which needs attention. James Prendergast, an asthmatic, was prescribed Amoxil by his doctor. The writing on the prescription was so illegible that the pharmacist dispensed Daonil. The judge held that both the pharmacist and the doctor were negligent. The doctor had a duty to write clearly and the pharmacist should have checked with him because the dosage prescribed was unusually high for Daonil. The GP was 25 per cent and the pharmacist 75 per cent responsible (Prendergast v. Sam and Dee (1988)).