On the morning TV talk-show Bongu, we raised the issue of sick leave certificates and the complications that arise in the relationship between the company doctor, the company itself and the worker. It is a typical case here, in my opinion, of medicine gone mad.

It started probably under a socialist government when sick leave started to be considered as a privilege and a right. Although technically it is a right, it is only so when one is sick and it is the doctor who has to decide upon that right. Now we have discussed in this column that the fiduciary relationship that exists between the doctor and his or her patient may lead a doctor to trust a patient that he was sick and therefore to issue a certificate. This does not mean that no abuse exists. In fact many workers actually are known to sit down together and ‘decide’ when they will be sick so that they do not overlap. This abuse has led to companies having their own company doctor who is sent to people’s homes.

Have doctors been living a lie? Have we really solved our sick leave problems? Most doctors find solace in their own morals and ethically give a service of care to all workers. But this is only if it is permitted and promoted as such by the company. Many companies discriminate and will send the doctor, without his or her knowing, only to a select few. This is usually not a random number and therefore becomes discriminatory. If you are a worker and see the company doctor, you then feel that the management wants to check on you or that you are not trusted. Certainly this is not conducive to a healthy management/worker relationship. Conversely workers who abuse will be a source of discouragement and disgruntlement to other workers.

It should be pointed out that there is no law which regulates the relationship between a company doctor and the worker. Hopefully this will soon be rectified. It is not the first time that a company will accept the certificate of its doctor only and the company doctor refuses to accept the patient’s GP’s certificate. There were instances, as the phone-in on the programme proved, where some doctors actually go beyond their call and tear the certificate of the GP. It goes without saying that this is against the law. But it so happens that the worker may be too afraid to report to the medical council for his or her work is at stake – or at least they perceive so.

Many do indeed perceive the company doctor as a police officer, even though no doctor would want this label. Many patients will complain about the attitude of the company doctor. Conversely there are company doctors who would issue a certificate but will still insist that the patient’s GP sees them and issues a certificate. This again puts into question the visit of the company doctor qua doctor, when he is insisting that the GP still sees the worker. We have to define what sort of relation has to exist between the GP and the company doctor. More often than not the company doctor is not an occupational physician and has a GP practice of his or her own. This is legitimate as GPs worldwide fill in the niches and needs of the country. But clearly there can be a conflict between doctors and it is impossible that this conflict always goes to the medical council to be resolved. Often one has to give in and many times they contact each other by phone. In one instance when I worked as a company doctor, I had a patient who occasionally got migraine and took the whole week off. The GP knew this person longer than I and of course he called me to explain the situation, which in turn I had to explain to the company. The company never was totally convinced.

The problem is that many companies will employ a doctor not as an occupational physician (some will have noticed that I have been avoiding this terminology). Only the more serious companies will do so. Often the employer sees a doctor simply as someone to confirm illness. And it often happens that some companies would select only a few cases they have suspicion on, for the doctor to see. The doctor however cannot assert whether a person is lying or not or whether they are putting up an act. Since by definition the relationship between any doctor and a patient is a fiduciary one, it has to be based on trust – trust that the person is saying the truth. One cannot follow a person into the bathroom to confirm an enteritis. The companies would have already done enough to breach that trust and technically no doctor should see anyone who does not wish to be examined.

Now many companies have collective agreements which stipulate that the company has a right to send a doctor when someone calls in sick. This in my opinion should be illegal, period. You should not have a right reserved to you, if you are management, to send a doctor or not to a person. You are not competent and cannot know before someone examines the person, whether he is ill or not. The implication is obvious – you have a suspicion that the worker is not genuinely ill. This is what creates the distrust and doctors would do well to steer away from such circumstances. It is already enough that we are sending doctors whom workers do not know to examine them physically. It is doubtful how much a collective agreement has a right to stipulate that a male physician, who is not the doctor of a woman, can examine a lady worker without her consent.

There is no such thing as a collective consent in health care. It is different when you go to a health centre, where you know that you may not find the same doctor and when it is your choice to go. When a doctor is being imposed upon you, it puts the medical profession in murky waters to say the least. Thankfully most doctors know how to diplomatically work themselves around and still provide good care. Many workers may not have the same GP or may use the services of the health centres. The company doctor has no one to converse with and what happens when he is not convinced that there is an illness. One thing which surely happens is that the relationship between this doctor and the worker breaks down, even before it had time to build.

There are instances then when the company doctor, duly doing his duty, will see that the worker is right and the company is wrong. In an extreme case which I handled, a woman left work because she fainted. I was sent to see her. It transpired that she was being harassed sexually in front of others. Whilst some of the other women tolerated the manager/perpetrator, she broke down and went home. It was not the first time and she had already gone to the police. I simply confirmed what I saw – that she was agitated. I had no reason not to believe her story and reported the incident to the HR department. HR in turn, instead of doing the right thing and investigating and taking the necessary action, went on the defensive. I remember that on the phone, the HR manager told me that this manager was the father of one of the secretaries who used to call me with the list of GPs – as if this had anything to do with it. What they should have done was recognise that there was a problem, issue a proper apology and make sure that all workers are given a course in sexual harassment at work – for many may not be sure what sexual harassment actually is and ‘innocently’ (or so they think) do or say something which is out of order. This is the attitude that was taken and a few months later, when in court, the company’s lawyer tried to play down the situation in this way and whilst interrogating me questioned whether I was competent to tell whether she was lying or putting up an act! Of course if you base your relationship with patients on trust, this does not come into the equation. And that seemed to rest his case. Fortunately it seems that her case was vindicated. In this situation the company gave off the message that it will defend management even against sexual harassment. Perhaps it was a question of who the person was.

Company doctors are responsible for the occupational health of workers. Companies should not be distressed when things which need amending are pointed out. It is better that someone who cares for the company points things out before harm is done. If a doctor says that a particular precaution is necessary, he is simply doing his duty. If something had to happen the doctor will be responsible. This shifts the argument now on workers who genuinely or not take sick leave for a particular condition. This most commonly is back pain. If the work consists only of lifting, the doctor can be put in a difficult situation and would have to state that the worker is no longer good for that sort of work. Now it so happens that with sick leave, in my experience, workers try to give a message to management. A waiter who is made to carry furniture around or clear a whole restaurant may feel that that is not his work and the next day take a day or two off. The pain may even be genuine. The doctor has to give the benefit of the doubt. But if the sick leave repeats itself for the same reason, the job description would have to be looked at and if it is in his duties, then he may even lose his job.

One worker who lifted boxes made a case for himself by going, without the company’s knowledge or that of the company doctor, to a specialist who investigated and issued a certificate that he was no longer capable of doing that kind of work. The worker imagined that since others were given another type of work inside the factory which did not involve lifting, he would be transferred to that area. I had to explain that that was not necessarily the case and that in any case it was not my call. Now that he showed me a specialist certificate I had to report it to the company and advise that he should not do that kind of work any longer. The company would also from that point on end up being liable. He asked me therefore not to give them the certificate of the specialist, but there is a limit to confidentiality for by showing it to me he had already showed it indirectly to the company. I may not give the company details which he would not want to reveal, but now I was still duty bound to obey the recommendation of the specialist. He ended up losing his job and it was thanks to the management that due to his long service was given some compensation – for he then made a case that his back pain was work-related.

The morale here is that over the years we have created a situation which, given that justice must be done and must be seen to be done, is seen as a policing by doctors. It is in our interest as doctors to put a stop to this and regulation issuing from the medical council will help considerably to define what the duties of company doctors vis-à-vis workers and their own GPs are. Should company doctors allow management to discriminate and to choose to whom it should be sending a doctor? Does management have a right to terminate the work of a doctor because, as in the case of harassment discussed above, the doctor takes a position in favour of the worker? Should doctors have an appeals board in such cases? This and so many other questions remain unanswered and all because abuse by workers led to abuse by management. Once the ball is rolling, the perimeters of the field have to be defined and along with it the rules of what constitutes ‘a foul, what a penalty, and what is legitimate’.

Pierre Mallia is Associate Professor in Family Medicine, Patients’ Rights and Bioethics at the University of Malta; he is also Ethics Advisor to the Medical Council of Malta. He is also former president of the Malta College of Family Doctors.