A question of ethics

Medico-legal adviser Dr Bryony Hooper and employment specialist Gillian Dowling answer questions on ethics and equality in the surgery.

Q: Parents and children
A 14-year-old girl lives with her mother. Her parents are separated. Does her father have a right to see her medical notes?

There are two key issues to consider. Firstly, does her father have parental responsibility? If the girl's parents were married at the time of her birth or any time afterwards, then her father will have parental responsibility unless it has been taken away by the courts.

If they weren't married, he can only have gained parental responsibility for his daughter through an agreement with the mother or by an order of the court.

However, the law has recently changed, and if the girl's birth had been registered after December 2003 (in England or Wales), the father would have parental responsibility if he was named on the birth certificate.

If the father has parental responsibility, he may be entitled to see his daughter's records.

The second issue relates to the competence of the girl. At 14, it is likely she will understand the significance and implications of her father wanting to see her medical records. If this is the case, the notes should not be disclosed without her consent.

The information commissioner has issued guidance stating that the child's views about disclosure should be sought from the age of 12 onwards.

Q: Antidiscriminatory practices
Can receptionists who do the same job be paid different hourly rates to reflect years of service at the practice?

The interview, short-listing and recruitment procedure must not discriminate on grounds of gender

Generally speaking for this type of role it is best to have a rate for the job, and if long-serving receptionists have taken on more responsibility, this is recognised by a more senior grade.

If they have the same responsibilities as the other staff, but some specific duties (such as being a keyholder to the office), they should be given an extra responsibility allowance.

There are risks of discrimination and equal pay claims in linking pay to length of service.

At the outset of the employment, pay can be adjusted according to length of service, to allow for the learning curve to do the job. A probationary period is often at a lower rate of pay and, depending on the complexity of the job, a further training period of a year or more could be considered appropriate.

However, in some roles, linking pay to length of service can be a sex discrimination issue as women are more likely to take career breaks then men.

Age discrimination is also an issue. The Employment Equality (Age) Regulations 2006 allow for pay to be increased on length of service for employees with up to five years' service.

For longer service, pay increases linked to length of service have to be objectively justified, which may be difficult to do, and would depend on the organisation and its particular set of circumstances.

Q: Sex discrimination
When short-listing for a practice manager, are we allowed to have an all female list?

It should be your aim to recruit the best person for the job, regardless of their sex. The wording of your advertisements should not appear to be biased to one particular sex and your method of advertising should be widespread, so that it is easily accessible to both sexes.

Before advertising for staff, you should prepare a specification of the type of person you want in the role, setting out the skills, qualifications and experience that are essential and desirable for the post.

You should also have a job description for the role covering the overall purpose of the job, its reporting relationships, the extent of the job holder's authority, the duties, how performance is to be measured and any special factors unique to the job.

The job description and person specification should not contain any statements that could potentially be discriminatory.

Shortlisting should be based on the job description and person specification and, to avoid any personal bias, more than one manager should have input.

Assuming that you have advertised widely and carefully carried out your short-listing, having only female candidates is unlikely to be discriminatory.

You would not be required to add a male candidate who did not match the shortlist criteria, or re-advertise the post. If there were allegations of sex discrimination, you would be able to justify how your recruitment procedure had been carried out.

  • Dr Hooper is a medico-legal adviser at the Medical Protection Society and Ms Dowling is employment specialist at Croner
  • Croner provides business advice to members of the Medical Protection Society who have joined the GP Practice package. Croner is the UK's leading provider of information, advice and support in the areas of employment and health and safety

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