Sick Leave - Article by Pierre Mallia in The Sunday Times - 1/1/2004

Sick leave certificates
Dr Pierre Mallia

I have been asked by many colleagues to write something from the ethical perspective of the sick leave certificate controversy. Since there is more to this issue, especially from the moral and legal point of view, it is appropriate not only that the public understands the full implication of certification for sick leave but that hopefully, once Pandora's box has been opened, this matter be dealt with by the relevant bodies.

Let us first make one point clear. No doctor is infallible but, unless he or she deliberately falsifies a certificate, there is ample room to consider the fact that the doctor-patient relationship is based on trust and it is not the prerogative of the doctor to judge his patients and act as a policeman.

Conversely, there is no reason not to believe one's patients unless there is good reason. But if anyone decides to take a day off because it is the hunting season and goes to his doctor for a certificate then it is the patient who has breached this trust.

These days we speak of patient responsibility, especially in the light of increased patient autonomy and participation in treatment. Malingering cannot always be detected and if one starts mistrusting patients one breaches the very foundation of the fiduciary nature of the doctor-patient relationship.

But the main question is that the law says that a doctor must examine a patient before he or she is in a position to certify that illness. This is true and it is the law, period. Yet the courts are not bodies which only apply the written word but also see to it that justice, and the spirit of the law, is not broken.

Before examining this it would be opportune to point out immediately that the sick leave certificate itself is breaking the new law of data protection. Doctors are bound by confidentiality and therefore to put one's illness on a document which is going to be handled by many peope already jeopardises the patient's right to confidentiality.

Now one may argue that there is presumed consent from the patient once the patient himself is requesting that certificate. This is true but presumed consent is not informed consent (on which I hope this article will clear some issues) and secondly patients are indeed coerced into giving out their information as otherwise they would not be given any sick leave.

Once the patient is trusting the doctor and the department with this information, the department (and the doctor) are under the obligation to protect it. Now, unlike what many people believe, protecting information does not simply mean that people's identities are not revealed. Data are owned by the patient and therefore the patient has a right to know what the information will be used for and has a right to object that his or her information is used for causes to which he or she may morally object.

The EU directive on data protection obliges EU states in this matter as well. For example, if a woman gives a DNA sample to a lab and allows it to be used for an experiment or for statistical research, that DNA sample cannot be used for anything else.

Broad statements of consent for experimentation are not enough. The patient has a right to object to certain research (even statistical). She may be a Catholic and objects, for example, that her DNA, even though she will not be identified, is used for research concerning abortion.

Doctors thus have an obligation to protest when patients' information is used for tax purposes or statistical analyses not directly concerned with public health issues. This was definitely a case in point and whoever leaked the information, if such was the case, is liable at law for misusing patient information - even though nobody was identified and/or harmed.

Let us now turn directly to the issue at hand of consecutive certificates. Why should doctors oblige patients to spend money on consultations for certain illness in which it is known that the patient will be away from work for a number of weeks: post-operative convalescence, injuries, boarding out, etc.?

The very fact that doctors issue such certificates consecutively shows that they trusted the Department of Social Security in knowing that they are acting morally and responsibly (they can easily do otherwise by issuing certificates of non-consecutive numbers). So the director's protest with doctors did not in fact mean anything.

I was one of the many doctors who received such a letter and I pointed out that consecutive certificates in no way mean that I am not following up on my patient. The law cannot oblige me to examine a patient every week simply because she broke her leg. The patient may be being followed up in hospital anyway and it is still the general practitioner who has to issue the certificate.

Moreover, patients often misunderstand the nature of the word 'open' on the certificate as meaning that they do not have to go for a certificate every week. They turn up at your clinic a month later with this genuine mistake. Should I not issue these certificates, when I can still see the plaster but 'legally' have not examined the patient every week?

Again, while the profession cannot say that there may not be individuals who are abusing (judges too have been found to abuse), it would be unfair to continue following the attitude of attacking it-tobba u l-avukati. This only smacks of perverse political voices trying to work on respected members of society who happen to earn more than others.

(Incidentally after 12 years as a doctor I still drive a second-hand car and live in a maisonette. In fact if anyone had to count ten GPs that he knew - and not specialists - he would find that they drive normal cars and not BMWs, as our foreign colleagues do.)

Having said all this, we all make mistakes. I will not hesitate to admit that last week, even in the midst of the controversy, I issued a certificate to a patient and was a bit uncomfortable.

What is more important to me as a doctor vis--vis my covenant with patients - abiding strictly by the rule or trusting them? Granted, I should not breach any ethics but we all know that what is law need not always be ethical and vice versa, what is morally sound, as in this case, is not (yet) legal.

Professor Ian Refalo and I presented a paper in Helsinki last August where we argued that research ethics committees can indeed refuse to allow legitimate research and indeed allow research which is illegal. I will not go into the merits of these arguments, but the fact is that research ethics committees were set up, after the war, to guard against perverse legislation as the Nazis had.

Extrapolating this, many countries do not update their laws in lesser matters as is this issue at hand, and the doctor's obligation is towards his patient. Indeed doctors have to protect the public interest, which is why certain diseases and criminal behavior has to be reported, but sick leave certification certainly does not fall into this category.

Indeed, if we were to protect the public interest it is our obligation to point out the illegality of certification with regard to data protection and that we need to dialogue and see how to make sick leave certification better and more effective in reducing abuse.

Finally, it is incredible how the small number of certificates issued by GPs were made to sound as if they were a large amount. Many doctor are also company doctors and issue certificates by the dozen. They do not obviously reflect income, and trying to use them for VAT purposes, besides being out of subject, is indeed immoral at worst and shows lack of understanding of the subject at best.

That there is an increase in certification during the hunting season is indeed interesting and Government should consider whether resources should be invested to contain this problem. But to blame a doctor for trusting his patient who said he has back pain or diarrhea (as if I follow my patient to the toilet!) is ludicrous.

May I suggest that the department of social policy meet the Medical Association and the College of Family Doctors to discuss this issue rather than continue to allow people to use patient information for perverse and unacceptable pop-statistics which have no scientific value at all.

The government has seen how much resources can be wasted in health centres. Should we continue to oblige people to waste health centre doctors' time simply because they have a common cold?

Conversely, for those who have a family doctor, should we oblige people for the same reason to spend money on a consultation when they can get a certificate later? Mothers usually can handle the sniffles quite well without spending Lm3 or Lm4 to get the doctor - and so can all adults!

Most important of all, data owned by the patient (and sick leave certification falls in this category) should not be used for purposes they have not consented to. We are not living in Stalinist Russia.

Dr Pierre Mallia specialised in clinical and biomedical ethics and is president of the Malta College of Family Doctors. He is the author of Your Rights as a Patient (PEG Publishers, 2002).

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