This topic deals mainly with personal liability of OH practitioners, including indemnity. There is also a page on Revalidation for doctors and nurses.

Essentials

• OH practitioners may be liable in civil law for negligence. However in the case of job applicants, the Kapfunde case held there to be no liability for economic loss (failing to get the job) on the part of an OH doctor reviewing pre-employment questionnaires, at least where he did not see the individual.
• The OH practitioner may have a duty in negligence to the employer’s workers or others such as patients who are foreseeable. This duty should not extend to random members of the public, if for example a driver faints at the wheel and kills pedestrians; here though the employer may be vicariously liable for the driver, and the OH physician might be liable to the employer. See OH practitioner’s duty of care in civil law.
• Though not tested in the courts, it can be argued that personal liability under the EqA should not apply to most OH reports since the OH practitioner only gives advice. However practitioners should, for example, always consider the possibility of reasonable adjustments in the job. The EqA can also require adjustments as regards medical consultations.
• All registered healthcare professionals in the UK must have an insurance or indemnity arrangement in place in order to practise.
• Doctors must revalidate every five years (the FOM provides a Responsible Officer service), and for nurses a three-yearly revalidation process is being introduced from April 2016.

Topic overview

This Topic looks firstly at possible personal liabilities of OH practitioners:

• OH practitioner’s duty of care in civil law considers how far OH practitioners can be liable in negligence to workers, job applicants, and others such as customers or the public.
• OH practitioner liability under EqA looks mainly at possible personal liability under the Equality Act of OH practitioners (directly employed or external).
• Criminal liability of OH practitioners under health and safety legislation or for manslaughter – but prosecution of an individual OH practitioner will be very exceptional in practice.

Indemnity for OH professionals looks at professional indemnities and insurance; and there is a page on Revalidation for doctors (including Responsible Officers) and the new requirements for nurses.

See also under separate topics:

• Duty to disclose poor practice, in the Whistleblowing topic; and
• the brief section on Professional bodies on the ‘Courts’ page.

Some of this Topic uses (updated) material by Diana Kloss from Discrimination Law and Occupational Health Practice, ed Diana Kloss and John Ballard, 2012; and further material by Diana Kloss.