June 29, 2022

Volume XII, Number 180

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More healthcare professionals given powers to issue fit notes – a sticking plaster or fit for purpose? (UK)

As of 1 July, the rules on Statements of Fitness for Work (“fit notes”) will change. In addition to doctors, now nurses, occupational therapists, pharmacists and physiotherapists will also be able to issue them – although that must still be following an “assessment” and fit notes cannot be issued simply on request or “over the counter” (the link to the amended legislation is here).

To recap, the current fit note regime came into force in April 2010, replacing the old system of statutory sick notes. Whereas the old system was binary – the individual was either able to work or not – the fit note system also allowed for individuals who have been off work for more than seven days to be signed “may be fit for work” (confusingly, given its name, a fit note cannot actually declare that an individual is fit for work). If that “may be” option is selected, the issuer is then required to confirm any adjustments which might help to facilitate that return, e.g. a phased return, amended duties, altered hours, workplace adaptations, resolution of ongoing disputes or conflict, etc. However, those suggestions are made at an in-principle level only, and not necessarily with any real knowledge on the part of the doctor as to what could fly in practice in that particular workplace. As such, they are guidance at best, some things for the employer to consider but in no sense binding on it if they won’t work on the ground.

One key aim behind that change in 2010 was to encourage conversations between the employer and the employee about what the individual might be able to do, as opposed to what they could not, and around which of those adjustments the employer could take to reintegrate them into the workforce – an acknowledgment that managing sickness absences can be extremely tricky for employers and that it is in no-one’s best interests for employees to remain off work and be denied the possible therapeutic value of work and interaction with others if they could be brought back into work by making some accommodation for them.

This is all well and good in theory, but sadly the statistics show that most fit notes simply sign the employee off work, period.  The “may be” option is little used and still less heeded. This is of course absolutely right in the case of genuinely incapacitating sickness absence, but sadly we often see employees using the relative ease with which they can be signed off work as a convenient way of avoiding their employer’s proper processes. The perception is that if employees go to the doctor asking to be signed off work with something unspecific, more often than not, they are – whether this is strictly merited or not – so taking time and resources away from those who are genuinely unwell but could perhaps still work to some extent if the employer understood how best to support them.

And indeed, although the current guidance for GPs makes admirable attempts to dissuade GPs from simply signing people off work and includes a section recommending that GPs discuss “patient beliefs about health and work” (in short, suss out if there are genuine health concerns about a return to work or just the attempted medicalisation of management issues), there is little evidence that this happens regularly in practice.

Given the move to virtual appointments as a result of the pandemic, in April this year a change was made to allow for fit notes to be issued digitally rather than requiring a wet-ink signature – but individuals were still required to see their doctor (whether virtually or otherwise) to obtain one.  The government’s press release about allowing a wider range of healthcare professionals to issue fit notes suggests that this will “support and empower better conversations about work and health between employers and staff by making it easier to get this advice certified by the most relevant healthcare professional“. This may sound somewhat aspirational, but given the much publicised difficulties in obtaining GP appointments, widening the number of people who can issue such notes, might at least create a greater chance of obtaining a fit note in a timely manner.

Likewise, where an individual is undergoing a course of treatment with a healthcare professional, e.g. a physiotherapist or an occupational therapist, he/she would currently need to obtain a separate GP appointment to obtain a fit note. Not only does this clog up GP waiting lists, but means that the practitioner making the decisions about fitness to work is not the practitioner responsible for the individual’s care or a specialist in his sort of condition – which common sense would suggest may not be ideal.

Only time will tell whether allowing a wider range of individuals with varying levels of experience, qualification and busy-ness to make the assessment will make it more or less likely that employees are signed off altogether and instead proper recommendations are made which do indeed facilitate better conversations around the practicalities of a return. How this translates in the context of pharmacists being able to issue fit notes remains to be seen – this may be ignorance on the part of the author, but this seems to go far beyond the remit of their current role and if GPs have faced an uphill struggle in making this assessment (with the benefit at least of the individual’s detailed medical history, etc.), it is unclear how pharmacists will be expected to make this assessment.  Let’s hope more is required than simply telling the pharmacist one doesn’t feel up to working at the moment. Only time will tell whether this a political move by the government to put a sticking plaster over the shortage of doctors and GP waiting times, or whether it will indeed help employers get help to manage tricky sickness absence issues better.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 172
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About this Author

Laura Nelson Employment Attorney Squire Patton Boggs London, UK
Professional Support Lawyer

Laura Nelson’s practice focuses primarily on preparation for and attendance at Employment Tribunal Hearings, preparation of advice on all aspects of employment law, and drafting of contracts of employment, company handbooks and compromise agreements. Laura has also advised on a variety of football related employment issues, as well as more sports specific issues such as player transfers, third-party influence over clubs and the international transfer of minors.

44 207-655-1082
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