Ethical behaviour is a cornerstone of good medical practice. The relationship between a healthcare professional and a patient is one where power lies predominantly with the healthcare professional. Patients are, by definition, vulnerable and have little option but to place their trust in the knowledge and skills of the healthcare professional that they consult. The potential for the healthcare professional to abuse that trust has been recognized since antiquity and societies around the world have drawn up behavioural codes to mitigate that risk. The benefits for the patient are self evident but such an approach also benefits the healthcare professional. Clinicians can generally only operate effectively where patients are willing to disclose relevant information and to cooperate with examination and treatment. A healthcare professional who does not command the trust of patients will be less successful professionally and commercially. The moral imperative to act ethically is therefore supplemented by market forces.

Modern ethical codes and guidance derive both from the deontological strand of moral philosophy, where actions are driven by duty, and from utilitarianism, where consequences are the driver. However, there are four key principles that underpin all medical ethics:

• respect for autonomy of the individual
  
• non-malfeasance (Do No Harm)
  
• beneficence (Do Good)
  
• justice (Fairness and Equality).

In some situations the principles can be opposing, and each healthcare professional must decide on the right course of action in those circumstances and be accountable for their decision. Material is available to help deal with such dilemmas and in the United Kingdom the General Medical Council (GMC), the British Medical Association (BMA) and the Nursing and Midwifery Council (NMC) produce comprehensive guidance. Cultural and societal differences can lead to varied views on what is ethically acceptable and global guidance issued by bodies such as the World Medical Association is particularly useful as both healthcare staff and patients become more mobile internationally. The International Commission on Occupational Health (ICOH) has produced a code of ethics that applies to all occupational health professionals and which is particularly helpful for those with international responsibilities; the current (third) edition is under review and a revised version is expected in 2012.

Exactly the same principles apply in occupational health as in other branches of healthcare. The widespread use in ethical guidance of the term ‘patient’ for all people with whom a healthcare professional interacts may not be helpful because it implies a therapeutic relationship. Such relationships may occur in occupational health but, certainly in the United Kingdom, are not the norm and usually relate to specific tasks (such as vaccination) which generally constitute only a small part of an occupational health professional’s practice. Occupational healthcare staff occupy a similar position of power in relation to workers, whether or not treatment constitutes part of the service provided. In a clinical context a worker is far more likely to divulge confidential information to an occupational health professional than to someone without a healthcare background (such as a line manager or a human resources (HR) professional). Similarly, management is far more likely to accept guidance on health matters from an occupational physician or nurse than from someone who is not qualified in medicine or nursing. Occupational physicians and nurses enjoy authority and status—they must therefore apply the same ethical principles as others in the healthcare profession.

It is more common in occupational health than in many other specialties to have dual or even triple responsibilities in relation to a single case (Box 6.1).

It is becoming unusual in the UK for a situation to arise where GPs provide occupational health services to an organization employing many of their patients; in such circumstances doctors must be unambiguous about which role they are fulfilling and make that absolutely clear to the patient, because the risk for a breach of trust is high. More commonly clinicians will be asked for employment advice in relation to a patient they are treating. In such circumstances they must be clear not just about the clinical aspects of the case but also about the employment issues and be sure that they are competent to provide the advice requested. Treating clinicians may have a clear view on the harm to health that can result from undertaking certain activities but they should also consider the harm to health that arises by excluding individuals from paid work. They must take a balanced view when discussing such matters with their patients and respect the autonomy of the individual to make their own decisions; if the consequences of that decision have a potentially serious impact on health or safety they will need to consider public interest disclosure to the employer or regulator.

It is more usual for an occupational physician to be engaged to provide an impartial opinion on a worker’s capability and any measures which might be indicated to adjust the work or rehabilitate the individual. The employer and the worker may have different aspirations for the outcome of the assessment and the doctor must resist inappropriate pressures from either party to sway their objective and evidence-based judgement. Similarly an occupational physician’s report may often be the gate to financial benefits for the worker from pension schemes, insurers, etc., and this can influence behaviours—both prejudice and naivety are to be guarded against. Opinions provided must be based on a suitable and sufficient assessment of health status and capability. The process, particularly in activities such as medical retirement benefit assessment, may not include the opportunity to interview or examine the worker and the occupational physician should ensure that the evidence base is as comprehensive as practicable, taking particular care not to rely on material that could be biased or misleading.

Balancing these multiple responsibilities according to ethical principles is consistent with the injunction to ‘make the care of your patient your first concern’. That does not mean taking the side of the worker regardless of the circumstances but rather ensuring that clinical issues are given primacy. The key to operating ethically in this potentially contentious area of practice is the consistent application of fairness, openness and probity.

Practising within the limits of the law does not guarantee that behaviour will be ethical and acting ethically does not ensure legal compliance. In general, there is reasonable concordance between medical ethics and the law, at least in democratic societies, but it is risky to try to apply a ‘rule book’ approach to ethics. Codes and guidance are a useful adjunct to the ethical analysis of a situation but cannot be a substitute for that process.

Most law is specific to a jurisdiction (usually a nation state) but some has its roots in global initiatives (such as the United Nations Human Rights Convention) or in transnational agreements (such as European Union Directives). Legal issues are the subject of another chapter (Chapter 5) but some of the UK legislation impacting on ethical issues in occupational health is shown in Box 6.2.

The collection, storage and processing of information is the area that prompts most ethical enquiries in occupational health. In many countries these issues are subject to legislation that may be specific to medical records or which may be encompassed within laws concerning sensitive personal information. In the UK the prime legislation is the Data Protection Act for which the Information Commissioner has produced specific guidance relating to workers’ health and this is supplemented by guidance from the GMC on disclosure in the context of employment.

Disclosure

• A disclosure is only made when information obtained in confidence is passed on to a third party.
  
• The consent of the worker to whom the confidential information relates must be obtained.
  
• The consent must be ‘informed’—i.e. the worker must understand what is to be released, to whom, and the likely consequences.
  
• Consent may be ‘implied’ for purposes such as sharing information within a healthcare team or clinical audit, but information about these activities should be readily available to workers.
  
• Refusal of consent may be overridden if required by law or in the public interest—such action requires careful consideration and full justification.

Collecting Information

Assembling the evidence base from which to formulate an opinion is generally undertaken by a clinical assessment, which may be face to face or remote using communications technology, and/or by the procurement of reports from the worker’s own medical advisers. In either case the worker should give informed consent to the process. Ideally, the worker’s written consent should be obtained for a clinical assessment but if this is not practicable (e.g. a telephone consultation) recording verbal consent contemporaneously in the occupational health record should suffice. If reports are sought from a third party then written consent must be obtained in accordance with UK law. Increasing use is being made, particularly in benefit and personal injury cases, of covert surveillance which may be filmed. Occupational physicians should not be party to commissioning such evidence, since (by definition) it is obtained without consent, and should resist pressure to comment on it as a substitute for a properly constituted assessment.

Occupational health professionals should remember that the prime purpose of clinical records is to facilitate good-quality healthcare both at the time of their creation and in the future (when another health professional may seek to rely upon them)—their value for medicolegal purposes is a secondary (though important in practice) consideration (Box 6.3).