Medico-legal - When employees are patients

Think twice about treating your employees as patients, says MPS adviser Dr George Fernie.

Conflict within the working environment of general practice can severely damage professional relationships with staff, ultimately jeopardising patient safety.

This conflict can arise if personal and professional boundaries are crossed when staff members become a patient, or if they have relatives who are patients at the practice.

This conflict will be particularly apparent if concerns are subsequently raised about the staff member's performance at work. It is difficult to approach such employment issues with a clear, objective view if a GP is aware of the staff member's medical condition - and it is important not to make use of information that would otherwise require consent.

The Disability Discrimination Act makes this issue clearer. The Act makes it unlawful for employers to discriminate against disabled people for a reason related to their disability in all aspects of their employment, unless this can be justified.

The fundamental point is that you cannot make use of private medical information. This applies in application forms, terms of employment, promotion and training opportunities, and work-related benefits.

When addressing performance concerns while seeing the staff member as a patient, approach the situation by separating the two roles, or consider splitting the roles with another person. Alternatively, the staff member could register at a different practice, although there is no legal requirement to do so.

Single-handed GPs
Although fewer doctors than before come under this category, they will be especially exposed to conflicting responsibilities.

Where employees being patients is unavoidable, the GP should ensure that they are professionally comfortable undertaking the dual roles of employer and treating doctor, by ensuring that patient safety comes first at all times and clearly separating the two responsibilities.

If this is not possible, the alternative option of the staff member registering with another practice must be considered.

Independent advice can be sought from your LMC, medical defence organisation or at the BMA. The particular circumstances of an individual doctor will be taken into consideration.

Case study
The GMC says: 'You must protect patients from risk of harm posed by another colleague's conduct ... The safety of patients must come first at all times. If you have concerns that a colleague may not be fit to practise, you must take appropriate steps without delay, so that the concerns are investigated and patients protected where necessary.'

A practice nurse had worked for a number of years without cause for complaint by patients or doctors, but developed a number of performance issues, such as using contaminated cotton wool balls in venepuncture procedures. She was suspended, pending an investigation where an audit of her work revealed several additional problems, along with lack of insight.

She was registered at the practice and attended one of the partners, to whom she disclosed marital problems along with depression and further enquiry revealed alcohol dependence. She did not wish the senior partner to know of her personal difficulties.

There is an obvious dilemma here, with the doctor's duty to patient safety trumping any loyalty to a staff member or any wish to avoid addressing significant performance issues.

In fulfilling this obligation, the practice made a number of procedural errors, which attracted subsequent criticism at an employment tribunal, where the nurse alleged constructive dismissal.

It is likely this could have been avoided had she not been registered as a patient with her employer.

It is important that patients' rights of confidentiality are protected and they are treated fairly as employees.

The GMC guidance Confidentiality, published in 2009, says: 'The first duty of a doctor registered with the GMC is to make the care of their patient their first concern.

'The term "patient" in this guidance also refers to employees, clients, athletes and anyone else whose personal information you hold or have access to, whether or not you care for them in a traditional therapeutic relationship.'

You should think twice about treating your employees as patients. Not only can it create awkward tensions and workplace-based conflicts, there are other consequences that are even more damaging, such as regulatory sanction or adverse findings at an employment tribunal.

Crossing professional boundaries can be avoided by careful planning and conscious decision-making.

  • Dr Fernie is a senior medico-legal advisor at the Medical Protection Society.

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