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Justifying a legitimately-issued medical certificate

17 June 2020 | Peter Harris, BSc, LLB, LLM (Hons), Solicitor, Avant Law, VIC and Dr Hayley Legrand, MBBS, BMedSc, DCH, FRACGP, Medical Adviser and Claims Manager, VIC, Avant

Medical certificates are powerful legal documents that may occasionally come under scrutiny by the Medical Board of Australia. Therefore, it is important to be fully aware of the legal and ethical obligations that come with signing one.

In one case, a GP member issued a medical certificate to the wife of a patient with an immunosuppressed condition. The wife attended the same clinic and was listed as her husband’s carer. Her husband had aplastic anaemia and was awaiting a bone marrow transplant.

The wife consulted with the member, and requested a medical certificate during flu season, when there was an outbreak of influenza at her workplace. She worked one day a week in the kitchen of a nursing home and was concerned about the possibility of exposing her husband to influenza. This was during peak flu season, and the doctor was aware of many patients coming down with the flu, including those who had already received the flu vaccination.

The doctor felt this was a legitimate reason for the medical certificate and disclosed all the relevant information on the certificate (having obtained consent from the husband to include his health information in the certificate). Subsequently, the employer complained to the Medical Board about the doctor for writing inappropriate medical certificates.

Some months later, the doctor received a letter from the Medical Board requesting a response in relation to the employer’s notification and subsequently contacted Avant for assistance.

Avant assists doctor’s response to the Medical Board

We helped the doctor by providing a letter from Avant Law, advising the Medical Board that as the notification was made by a third party (the patient’s employer), the Board should obtain consent from the patient to allow our member to disclose health information during the regulatory process. It was also suggested that it was inappropriate for employers to challenge medical certificates as a way of airing employment grievances by going to the Medical Board, and that the complaint should be dismissed.

The clinical justification for the medical certificate was explained in our member’s response. He explained that the certificate was issued on the basis that as an at-risk person’s carer, it was reasonable that she did not wish to enter her workplace where there was an influenza outbreak.

The case was dismissed as “frivolous, vexatious, misconceived and lacking in substance” under section 151(1)(a) of the National Law and the doctor’s conduct was found to be entirely appropriate in the circumstances. The explanation from the Board was that the doctor does not pose an ongoing risk to public health and safety, therefore no further regulatory action was required.

How can these situations be avoided?

Medical certificates are regarded as legal documents. Doctors may be subject to disciplinary action for providing deliberately false, misleading or inaccurate certificates. Unfortunately, it’s not uncommon for employers to utilise the complaints process to question medical certificates where there’s an underlying employment relationship problem or they consider there is insufficient justification for a certificate. In response to any complaint the Medical Board focuses heavily on clinical justification. That is, was there a legitimate clinical basis for issuing the certificate for a period of time that is also clinically justifiable? When responding to notifications, the Medical Board expects doctors to have practised in accordance with Good medical practice: a code of conduct for doctors in Australia and professional guidelines such as the AMA’s guidelines on medical certificates. As always, thorough clinical records which support the clinical indication or reasonable justification for issuing the medical certificate, will provide the strongest defence against any accusations of improper conduct.

In this case, the Medical Board accepted the practical necessity for the medical certificate to be provided for leave.

Rather than complain to the Board, some employers may seek clarification of a medical certificate directly from the doctor. When doctors are approached by employers to justify a patient’s medical certificate, the fundamental principle should be protecting a patient’s privacy. No further medical information should be given to a patient’s employer without first verifying the employer’s identity and obtaining the patient’s consent. If there is a suggestion a patient may have altered the medical certificate, by changing dates or other information, it is reasonable for a doctor to review the certificate provided to the employer and confirm the veracity of the certificate.

Useful resources

Guidance about completing medical certificates can be found in Section 8.8 of Good medical practice: a code of conduct for doctors in Australia and in Avant’s factsheet, ‘Medical certificates and your responsibilities’.

If you have concerns about completing a medical certificate, email us on nca@avant.org.au or call 1800 128 268, available 24/7 in emergencies.

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