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Reforming the medical statement: sick notes to fit notes

Posted on from Bargate Murray

The DWP has high hopes for the positive financial benefits of the new fit notes regime, which they assert will benefit the British economy by an estimated £240 million over the next 10 years. Here, employment law expert Philip Henson of Bargate Murray solicitors, offers guidance on the changes.

New fit note system

On 6 April a new regime was implemented where the medical statement procedure changed from sick notes to the much anticipated statement of fitness to work (known as “fit notes”). The changes came into effect via the imaginatively titled: Social Security (Medical Evidence) and the Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010.

The DWP has produced two guides: one for employers and another for GP’s, and other doctors. That guidance has been created by the DWP with the following: RCGP, BMA, CBI, ACAS, FSB, CIPD, ABI, BRC and EEF, the manufacturers’ organisation. ACAS has also issued guidance on the procedure. 

This note considers the implications of the new regime, the DWP guidance, and offers practical tips to help HR professionals, and employers.

The new fit note system will mean that doctors can advise that the employee is either:

1. Not fit for work – this means that the doctor’s assessment of the employee is that they have a health condition that prevents them from working for a stated period of time.

2. May be fit for work taking account of the following advice – this means the doctor’s assessment of the employee is that their condition does not necessarily stop them from returning to work. This could include a recommendation of one of the following: phased return to work, altered hours, amended duties, or, work place adaptations.

• The removal of the fit for work option

• A new option for a doctor to advise if an employee may be fit for work with some support

• More space for a doctor to provide information on how the employee’s condition will affect what they do

• Helpful tick boxes for doctors to use to suggest common ways to help a return to work.
There is a helpful flow chart, on page 13 of the employer’s guidance, which sets out what to do upon receipt of a fit for work statement.

Forms

HR practitioners will be pleased to know that there will be fewer forms to complete. The (white) Med 3 form and the (pink) Med 5 form will be streamlined into one form. The (yellow) Med 10 form, which states a period an individual has spent as a hospital inpatient, has not changed and will continue to be issued for that purpose. A sample of the new Med 3 form can be seen on page 9 of the employer guidance.

The Forms Med 4, Med 6 and RM 7 have been withdrawn from use. The changes to the benefit system whereby ‘Employment and Support Allowance’ (ESA) has replaced Incapacity Benefit means that these forms are no longer needed.

What stays the same?

• Statements are not required until after the 7th calendar day of sickness

• The information on the form is still advice to the patient. It is not binding on the  employer

• The requirements for the payment of Statutory Sick Pay have not changed

• The employer’s obligations under the Disability Discrimination Act have not changed.

Dispelling the myths

There are several myths which need to be dispelled about the new regime. The changes are not about trying to get employees back to work before they are ready, but about “removing the Challenges to them returning”. It's not a mechanism to escape making reasonable adjustments that may be required under the disability discrimination act. Neither is it a way for getting rid of staff who are not physically fit.

GP comments – “not too prescriptive”

The GP guidance highlights that much sickness absence is due to mild or moderate mental ill health or musculoskeletal or cardio respiratory conditions; and the effects of these conditions can often be accommodated at work, with appropriate adjustments, adaptations or support if necessary. 

The doctor’s advice in the comments box of the new form should describe the limitations that the person may have and “should not be too prescriptive about the solutions”. For example, they might advise that a person with lower back pain “cannot sit for long periods of time” rather than “should be provided with a better chair” or that a person with travel related anxiety might benefit from “avoiding travel in peak hours” rather than “should work between 10am and 4pm”.

There is also a new section in which doctors can state if they consider the need to assess their patient’s fitness for work again at the end of the statement period. This should help employers to have more of an understanding of the likely time scales involved.

Guidance

Telephone consultations and the role of healthcare professionals

An interesting development of the new regime is the variety of ways that medical assessments can take place. Under the new regime medical assessments can take place via a face to face consultation, a telephone consultation or the consideration of a written report from another doctor, or registered “healthcare professional”.

Telephone consultations are the first substantive item mentioned in the GP’s guidance and I suggest that this indicates its perceived significance for the health service.

Outsourcing?

Obviously telephone consultations would take away some of the pressure from GP’s surgeries. Hypothetically (and putting my cynical person’s hat on), it is foreseeable that some surgeries may eventually set up dedicated telephone lines to deal exclusively with fit notes; perhaps supported by other health care professionals (defined as “a registered nurse, an occupational therapist or a registered physiotherapist”) who could then complete a written assessment enabling the patient’s GP to complete a statement of fitness to work for their patient.

Medical condition

There is a new section within the fit note which allows the GP to set out the detail of the patient’s condition affecting their fitness for work which the guidance states should be “as accurate a diagnosis as possible”. The exceptions to this are where the GP considers that providing a precise diagnosis would be harmful to their patient’s wellbeing, or would compromise their patient’s position with their employer.

The GP guidance recommends that if GP’s feel that work itself may be a contributor to their patient’s condition, or they feel the issues are complex, they may wish to include in their comments a recommendation that an occupational health assessment be considered.

It's highly likely in cases of work place stress for example that the employer will have to arrange an occupational health care review, and in some circumstances it may be the only way that the employer will get a clear indication of the medical condition of the employee.

Occupational health advice line pilot

The government set up a occupational health advice line which has now been extended from the initial pilot to give every small business (with up to 249 employees) easy access to professional occupational health advice.

Goals of new fit note system

The overreaching objective of the new regime is to help people back to work at an earlier stage to prevent long-term sickness, and to give employers and employees greater flexibility in managing sickness absence. 

The GP guidance will be welcome reading to HR practitioners as it puts an onus on “addressing work issues” during consultations, and highlights that this can be challenging as patients may have a preconceived idea that they need to refrain from work to get better. The GP’s guidance seems to be proactive and explains that their advice will allow the employer to make a more active contribution to the employee’s recovery, and GP’s  may want to discuss the following with their patient:

 The health Benefits of work, include that work:
• is therapeutic and can help promote recovery and rehabilitation
• improves quality of life and wellbeing
• is central to the individual’s identity and social status.

 The adverse effects of being out of work on health, which include;

• higher mortality and poorer physical and mental health
• greater chances of the individual and their family being in poverty
• increased risk of social exclusion.

 The obstacles to returning to work and what could be done to overcome them, such as:

• a phased return to work
• altered hours
• amended duties and/or
• workplace adaptations.

Case studies

The DWP employer guide also includes some practical case studies which may be helpful to HR practitioners. One suggestion is the nomination of a “buddy” to support the employee upon their return to work.

Implications and practical tips

If you have a sickness absence policy, you should consider whether it needs amending to reflect the introduction of the Statement of Fitness for Work regime.

The DWP guidance recommends that when considering the doctors advice, employers should always consider if the advice is consistent with any industry or sector specific safety guidelines or regulations that the doctor may not be aware of.

Employers may wish to carry out a risk assessment of the workplace if they allow members of staff who are referred to as being “may be fit to return”; and in certain circumstances they may also wish to check the extent of their insurance cover.

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