Expert advice

first_imgSeveral cases have now established what the role of the OHphysician is and what he or she is or is not expected to comment upon. Tworecent cases both involve the same employer and the same OH physician. In the first of these cases – Vicary v British Telecommunications,1999, IRLR 680 – the Employment Appeal Tribunal made it clear that it was notfor the OH physician to express an opinion as to what is or is not a normalday-to-day activity nor was it her duty to tell the tribunal whether theimpairments were or were not substantial. Those are matters for the employmenttribunal to arrive at its own assessment. Previous Article Next Article The role of OH physicians and nurses In those cases the courts would take careful note of anypublished guidelines of clinical governance as a guide to whether or not anegligent practice had been adopted. Level of expertise The Regional Medical Officer Dr Macaulay was described bythe employment tribunal as “an impressive witness”. She had a specialqualification in occupational medicine and had attended a number of courses onthe Disability Discrimination Act 1995 and its application in the employmentfield. Comments are closed. Anyone holding them selves out as an “expert” isexpected to operate to the highest standard of care as practised by the verybest in that profession. Some practical advice However, now the courts are taking a slightly different viewof experts. In the case of Bolitho v City and Hackney Health Authority, 1997, 3WLR 1151, the House of Lords held that in most cases where distinguishedexperts in the field were of a particular opinion, that would be ademonstration of the reasonableness of that opinion. However, there may becases where the court was not satisfied with this evidence. This article looks at these issues and offers some advicefor OH staff when operating in what might be a litigious matter. – Stick to your remit and do not overstep your proper anddesignated role. If you are asked for advice on a sickness, absence, pensionor PHI matter. OH nurses should be qualified with the appropriate relevantcredentials in occupational health issued by the RCN or UKCC. Again trainingand re-training is essential during the course of employment. The courts have in the past taken the view of the medicalexpert as to what standard can be expected of a specialist in that particularfield. Before the Woolf reforms (of the civil courts and procedure), medicalexperts appointed by both parties would fight it out in court – entreating thejudge to accept one opinion rather than the other. Following the Woolf reforms,it is expected that the parties will agree a joint expert and that the courtwill not be asked to accept one expert view rather than another. Related posts:No related photos. “Nor is it”, held the EAT, “for the medicalexpert to tell the tribunal whether the impairments which had been found provedwere or were not substantial. These are matters for the Employment Tribunal toarrive at its own assessment” Negligence is established when the doctor or nurse’s act oromission (or advice) falls below that expected of a person of that level ofexpertise, and that act or omission has caused physical, mental and/or financialdamage to a patient or employer. If, in a rare case, it had been demonstrated that theprofessional opinion was incapable of withstanding logical analysis, the judgewas entitled to hold that it could not provide the benchmark by reference towhich the doctor’s conduct fell to be assessed. When it comes to the standard of care expected, the normalrule is that a doctor or nurse will be judged by the same standards as those ofa reasonably competent member of that profession. In other words, a doctor or nurse will be held to benegligent if he or she has failed “to exercise the ordinary skill of adoctor (in the appropriate speciality, if he be a specialist)”. The EAT criticised the employment tribunal for its approachand made this statement about seminars and courses: “…the fact that themedical adviser had been told on some disability discrimination course orseminar that something was or was not a normal day-to-day activity is not ofrelevance to the tribunal’s determination. It is not for a doctor to express anopinion as to what is a normal day-to-day activity. That is a matter for [theemployment tribunal] to consider using their common sense.” – Don’t feel threatened or intimidated by either theemployee – in rare cases doctors and nurses have been threatened with physicalor oral abuse from disgruntled employees – or by the employer; in some cases itis sensible to have a chaperone present and a tape recorder so that you candictate your observations during the course of the examination. – Re-read the scheme to ensure that the employee is givenall his/her rights. The EAT held that the employment tribunal had beenover-influenced by the employer’s regional medical officer’s opinion of whetheror not the impairments were “substantial” under the Act and in effectadopted her assessment instead of making their own. – Have a copy of the up-to-date sick pay/early retirement,long-term disability scheme or policy so you know exactly what the rules foreligibility are and what your role is. I am currently advising an employer who refused to allow anappeal from a refusal to give a long-term disability pension – only to findupon reading the scheme that employees have the right of appeal with a newindependent consultant, if they do not accept the original decision! Expert adviceOn 1 Feb 2001 in Clinical governance, Personnel Today Nobody’s perfect but if you act as an expert you mustexhibit the best possible standard of care. Here are the issues and some practical advice.  By Gillian Howard The common law has always made it clear that no one, howevereminent in their field, is expected to be perfect. In one case the Court ofAppeal stated that “The law does not require of a professional man that hebe a paragon combining the qualities of a polymath and prophet”. The court had to be satisfied that the exponents of a bodyof professional opinion relied upon had demonstrated that such opinion had alogical basis and in particular had directed their minds, where appropriate, tothe question of comparative risks and benefits to reach a defensibleconclusion. Anyone who calls them selves an “OHphysician/adviser” would be expected to be qualified in that field. Inother words, OH physicians should at the very least have gained the Diploma inOccupational Medicine from the Faculty of Occupational Medicine. Suchphysicians should also ensure that they are kept up to date by attendingseminars on the latest case law and legal developments in the occupationalhealth field and perhaps then move on to take the Membership or Fellowshipexaminations. During the course of her evidence, she gave her opinion onwhether the applicant’s impairment could be regarded as “substantial”under the terms of the Disability Discrimination Act 1995. The employmenttribunal accepted her evidence as if she were an “expert” givingevidence in the High Court. This was wrong! Two years later and with the same Dr Macaulay givingevidence in the tribunal, the EAT reminded her again of her role in disabilitydiscrimination cases – Abadeh v British Telecommunications, 2001, IRLR 23. Itheld: “It is not the task of the medical expert to tell the tribunalwhether an impairment was or was not substantial. That is a question which thetribunal itself has to answer. The medical report should deal with the doctor’sdiagnosis of the impairment, the doctor’s observations of the employee carryingout day-to-day activities and the ease with which he was able to perform thosefunctions, together with any relevant opinion as to the prognosis and theeffect of any medication.” For both OH physicians and nurses, the need to have anup-to-date library and subscriptions to relevant materials in employment lawand occupational health  is essential aswell as regularly attending training sessions and seminars. In other words, it is not the role of the OH physician totell the tribunal whether an impairment was or was not “substantial”.This was the role of the tribunal and the question that it had to answer – acase of deja vu for the OH physician! Gillian Howard is an employment lawyer and consultant withLondon law firm Howard & Howard Several recent cases concerning the DisabilityDiscrimination Act 1995 have highlighted the distinct and specific role of theOH expert and have clarified where the expert’s evidence should start andfinish. The Bolitho decision Part of the role of the OH physician or nurse is to advisemanagement accordingly when presented with employees who have chronic orlong-term illness or injury; potential disability issues and the need foradjustments at their workplace; possible long-term disability claims; andemployees who remain at work who may have mental health problems or alcohol ordrug addiction problems. The standard of care What do you need to be? As far as employers are concerned, it is imperative that anOH physician or nurse keeps up to date with the relevant employment legislationand case law so that they are in a position to advise accordingly. “A professional man (or woman) is not guilty ofnegligence if he (she) has acted in accordance with a practice accepted asproper by a responsible body of medical men (women) skilled in that particularart. Putting it the other way around, a man (woman) is not negligent, if he(she) is acting in accordance with such a practice, merely because there is abody of opinion which would take a contrary view.” Disability and discrimination – Take advice from colleagues, your professional body ordefence union if you are unsure of what advice to give. The courts as a general rule still use the famous Bolam test(Bolam v Friern Hospital Management Committee, 1957, 1 WLR 582) to determinethe question of negligence. What is negligence?last_img

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