The new fit-note system came into force earlier this month, so Prof Michael O’Donnell provides an overview of what it will involve for GPs, employers, and health and safety practitioners.
Since 1948, GPs have had the responsibility for issuing sick notes both for social security reasons, and employers. This has never been a favourite part of their job, and many doctors over the years have argued that this responsibility should be removed from them.
Employers, too, have often been critical of it, sometimes feeling that GPs issue certificates to patients/employees on demand. As a trainee GP in the late 1970s I attended a seminar on the subject, and I remember considerable debate and the consensus view that GPs should not generally refuse a request for a sick note, as such a refusal could jeopardise the doctor-patient relationship.
This view can only have been reinforced by the trend in the 1980s for Job Centres to refer claimants of unemployment benefit to their GPs for sick notes. Many doctors of my age will remember seeing patients in their surgeries during this period with such requests, and will recognise, in retrospect, that this was a way of keeping headline unemployment figures down during the recession of the time. This was certainly not official government policy, but it did little to enhance doctors’ views of the process of sickness certification.
More recently, a study in 20041 showed that doctors perceived contradictory demands from system stakeholders and felt blamed for failing to make impossible reconciliations. Some doctors admitted to putting fake diagnoses on notes, and many pointed out the difficulties in differentiating between people who are unfit and those who are not. Whatever the rights or wrongs of the doctors’ attitudes expressed in the study, they clearly indicated that the system was faulty and in need of change.
Another problem with sickness certification is that many employers do not understand the system and wrongly believe that it is illegal, or a breach of the terms of their employers’ liability insurance cover, to allow someone to work who is certified as unfit by their GP. This has led to a situation in which many people who are capable of doing some work, or even most of their work, are denied the opportunity to do so because they are not deemed ‘fully fit’.
In her review, Dame Carol Black2 pointed out that early return to work can enhance, or speed up full recovery. She also pointed out that a survey of 1500 doctors conducted for doctors.net showed that two thirds of them did not know of the evidence that work can be good for health, but 90 per cent agreed that this knowledge could help them change their behaviour.
One of Dame Carol’s main recommendations was the introduction of a new system of certification in which the sick note is replaced by a ‘fit note’ – a recommendation that has now been implemented.
What has changed?
The basic component of the old sick-note system was the Med3 form. This was completed after a face-to-face assessment by the GP of the patient, which had to take place on the date of issue, or the day before. The doctor would give a diagnosis and recommend either that the patient was unfit to work for a period of time, or until a certain date. He or she could also certify the person as fit to return to work.
If the doctor wished to backdate a note to a time when an examination took place, or another doctor had seen the patient, he or she could use a Med5 form. However, in no case could the note be backdated more than four weeks. There was a space for the doctor’s comments, but this was rarely used.
The new Med 3 under the fit-note system is not radically different but does include the option for the doctor to say that their patient may be fit for some work, taking account of the doctor’s advice. The doctor can choose from four options: phased return to work, amended duties, altered hours, or workplace adaptations. There is room for the doctor to amplify recommendations, or make ones that are not covered by the check boxes, including recommending a referral to occupational health. Currently, there is no requirement for doctors to recommend modifications, or employer actions in all cases.
Other changes, which have not been so widely highlighted, include: the removal of the requirement for a face-to-face assessment before issuing a note; the option to certify a person as fit for work; and the abolition of the Med 5.
In future, doctors will be able to backdate using the same note, either based on a previous assessment – which may not have been face to face – or on the basis of a report from another registered health professional. This removal of the requirement for a face-to-face assessment will be welcome to many doctors who know their patients well and who will no longer have to see them just for sickness-certification purposes. It remains to be seen, however, whether this will lead to fit notes being easier to obtain.
It is important to note that an assessment will still be required, so the doctor will need to record details of the illness requiring certification and what took place in the assessment process. Given that many illnesses that lead to sickness absence requiring certification have few, or no objective signs, telephonic assessment seems reasonable.
Alongside the introduction of the fit note, the DWP, with the Royal College of General Practitioners, is engaging in a major training exercise for GPs to help them understand issues around certification and to assist them in conducting what can be extremely difficult conversations with their patients.3,4
A study just published in the British Journal of General Practice5 showed that in a hypothetical exercise with 583 GPs, many more of them found that, with the fit note, they were more likely to find people capable of some work than with the old sick note, and 54 per cent of them provided written advice on the new note compared with only 12 per cent who had bothered to do so on the old note.
What does it mean for employers?
In many cases, the new system will not lead to any discernible change in the workplace. Employees will go to their doctor and be advised to remain off work or return to work, as before. However, in cases where the GP recommends adjustments, or referral to an occupational-health specialist, the employer will need to look at such recommendations and form a view on whether they are reasonable.
In line with the Disability Discrimination Act, reasonableness will depend on the following, as summarised by the Employers’ Forum on Disability:
Issues of confidentiality will apply but, with the employee’s consent, HR or health and safety professionals will be able to seek clarification from GPs. However, the best person from whom to seek information in the first instance will still be the employee – reluctance to have such a conversation is one of the main obstacles to resolving sickness issues.
The DWP has published detailed guidance for employers,7 which gives in-depth advice and includes hypothetical case studies. The guidance emphasises that as GPs will no longer issue certificates of fitness for work (the ‘signing-off note’), employers will not need such a certificate. It also points out that such a certificate is not required under employers’ liability compulsory insurance. However, employers who do have any concerns about this should contact their insurer for clarification, as it is a common myth that such a requirement is included in the policy terms.
Essentially what the fit note clarifies is the need to assess risk properly in all cases, not just when return to work is imminent. In most cases, such an assessment need not be difficult or long-winded, and health and safety professionals can really help in this regard.
In terms of what employers should expect of OH professionals, it could help change the way that they interact, with less emphasis on the person’s fitness for work and more on what can be done to help them back to work. This could be a good opportunity for companies to review their OH provision, and whether they are getting what they need from it. This could also lead to increased demand from smaller employers, when they encounter more difficult cases, and this may be an area in which NHS Plus could fill the gap.
Summary
The new fit note is unlikely to change things radically or rapidly – given the number of years that certification has been left to GPs with little or no guidance, there will be a degree of cynicism to overcome, and doctors do have to keep up to date with all other areas of medical practice as well.
Many doctors will also feel uncomfortable over their lack of occupational medicine experience. However, if they concentrate on having a discussion with their patient about what they can do in everyday life, they will be able to give useful advice in many cases. The aforementioned BJGP study is also very encouraging in terms of how doctors will adapt.
Overall, the change is welcome as it finally gives doctors a tool with which to manage sickness absence. If employers are willing to respond positively to the new fit notes, it will be a start in changing our culture to one in which people and their doctors do not automatically assume that any ill-health problem means having to withdraw from the benefits of work.
Considerable resource is being devoted to training doctors, and hopefully this will be matched by employer interest in maximising attendance and minimising losses due to people being prevented from returning to work by an inappropriately risk-averse view of health and work.
Finally, OH professionals need to see this as an opportunity to review their arrangements with employers to ensure that they are in the best place to maximise the benefits of the new fit note to all stakeholders.
Postscript: We’ll just have to ‘suck it and see’
Despite reassurance from the Government that the new system will benefit doctors, employers and workers, there is still a great deal of scepticism and uncertainty about it, as the following expert opinions reveal:
The risk assessment issues highlighted by the new fit note may result in the HSE becoming involved in disputes between employers, employees and GPs. The HSE has issued guidance for all staff who visit workplaces on the fit note and the appropriateness of risk assessments when a fit note is issued.
The HSE had hoped the note would provide an opportunity to establish a knowledge base for future study on the causes and incidence of work-related ill health. Representations for the note to record the patient’s occupation, the industry in which they work, and whether the GP considers the ill health of the patient to be work-related were made during the consultation exercise but these details were not included by the DWP due to the additional costs involved.
Minutes of HSE Board meeting, March 2010
A ‘360-degree study’ of UK businesses and their employees by Aviva UK Health in March found that many are dubious about how fit notes will be brought into effect, and question the initiative’s power to reduce employee absence rates and get employees back to work sooner. Among the 500 employers questioned, just 5 per cent said they thought fit notes would reduce absence rates, while 68 per cent had little or no knowledge of the change and how it would work for them.
On the employee side, the majority of the 1000 respondents (57 per cent) did not think their doctor was in a position to say if they are fit enough to work. Nearly two thirds of GPs (64 per cent) agreed, saying they felt ill-equipped to provide fit notes for the UK workforce.
The research also indicates that employees who don’t have a full understanding of the process may feel fit notes could be used to get them back to work too early, or even as grounds for dismissal. This could foster a culture of suspicion or lead to an increase in presenteeism.
Dr. Hugh Laing, chief medical officer for Aviva UK Health
The success of this initiative relies to an extent on GPs’ willingness to engage with the process. To date, there has been some resistance from their representatives, who are concerned with the need to retain the therapeutic relationship with their patients. The new process will see GPs faced with the need to advise on occupational-health issues – an area where many feel that they do not have sufficient expertise.
We are quietly concerned that, due to a lack of familiarity with occupational health, some GPs may sign off an employee as unfit for work rather than advising on a gradual return. This could also be the case if the patient is resistant to a return to work. Unfortunately, it is a case of ‘wait and see’.
Sarah Brown, head of health management at Mercer
The intention of the new fit note scheme is that the employer will only make changes recommended by the GP that are available and are within both parties’ agreement. However, this would be a problem if the employer does nothing – perhaps, for example, feeling changes are unsuitable, inappropriate or not available, and thus the employee stays off sick.
The employee, if disabled, could in theory then try to argue that the employer has breached their duty to make reasonable adjustments under the Disability Discrimination Act 1995 and purport to use the fit note as evidence to support their claim.
Furthermore, what happens if the employer does makes the suggested changes and invites the employee back to work yet the employee refuses as the fit note is still running and, despite the changes, they still insist they’re too sick to attend? Does the employer take the fit-note recommendations at face value, stop paying Statutory Sick Pay and threaten to discipline the employee? This situation has the potential to arise a lot, whereby the employee simply doesn’t want to come back to work and prefers to stay off sick.
Ultimately, it may then turn on whether the recommendations were fair ones to make to assist a return to work and, hence, whether the employee is acting reasonably and being genuine in asserting they’re still too sick to work, even with the adaptations.
Claire Birkinshaw, solicitor and legal information manager, Abbey Legal Services
References
1 Hussey, S, Hoddinott, P, Wilson, P, Dowell, J and Barbour, R (2004): ‘Sickness certification system in the United Kingdom: qualitative study of views of general practitioners in Scotland’, in BMJ 2004:328:88, doi: 10.1136/bmj.37949.656389.EE
2 Black, Dame C (2008): ‘Working for a healthier tomorrow’ – www.workingforhealth.gov.uk/documents/working-for-a-healthier-tomorrow-tagged.pdf
3 www.rcgp.org.uk/default.aspx?page=3772&eventId=3175
4 Cohen, DA, Aylward, M and Rollnick, S (2009): ‘Inside the fitness for work consultation: a qualitative study’, in Occup Med (Lond) 59: 347-352
5 Sallis, A, Birkin, R, Munir, F (2010): ‘Working towards a fit note: an experimental vignette survey of GPs’, in Br J Gen Pract 2010; 60: 245-50
6 www.efd.org.uk/employment/reasonable-adjustments
7 www.dwp.gov.uk/docs/fitnote-employer-guide.pdf
Professor Michael O’Donnell is chief medical officer of insurance provider Unum
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