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Tuesday 27 September 2016
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New "fit notes" explained

ALISON GRAHAM

Lawyer, Healthcare Employment Team
Veale Wasbrough Vizards

On 6 April 2010, the old Med 3 and Med 5 forms were abolished and replaced by a new form, known as the "fit note".

The new forms envisage a GP providing a much more central role in advising about a patient's fitness for work, with the new form switching the emphasis to what an employee can do, rather than what they cannot.

The scheme is well intentioned, based on the premise that recovery from illness and injury can in many cases be assisted by an employee returning to work.

If the scheme works, with GPs, patients and employers working together to explore if an individual could do some, or all, of their job with some support, rather than remaining signed off sick, then the theory is that employees will recover more quickly and businesses will benefit from a reduction in sickness absence.

However, how successful this will be largely dependent on how GPs embrace the new system and how employers react to their recommendations.

Therefore, for GP practices, the new scheme creates a multiple challenge – not only will GPs have to grapple with the new form, but practice managers will need to understand the implications for the practice – as both an employer and as a provider of fit notes.

"May be fit for work"
Under the new scheme, a GP assessing a patient has the options either to say that their patient is "unfit for work" or that they "may be fit for work". There is no longer an option to say a patient is "fit for work".

The "unfit for work" option works in the same way as the previous Med 3. However, the new fit note means that a GP should consider whether their patient could do some, or all, of their job if some changes – such as a phased return, altered hours, amended duties and/or workplace adaptations – are made, and give guidance to an employer to help facilitate a return to work.

GPs are not expected to be occupational health advisers and should instead provide guidance on the functional effects of their patient's condition within the limits of their own knowledge and experience.

Implications for the practice as an employer
Practices may be presented with a "may be fit for work" statement by an employee. This should prompt a discussion with them about their GP's comments to determine whether a return to work could be accommodated.

A GP's advice needs to be considered carefully, not only with the employee but also in the context of the practice, as there may be practical reasons or specific safety guidelines which render a return to work unfeasible. If applicable, a risk assessment should be carried out.

It may be that, notwithstanding the GPs comments, further input is needed from them or from an occupational health provider before a decision can be made about a return to work, especially where the employee has been off work for a long time or if the practice is unsure how adjustments will work practically.

If a return to work, with adjustments, is viable then the practicalities, including the agreed changes, return to work date and a date for review should be communicated to the employee. 

If the practice cannot make any adjustments or adaptations to help facilitate the return to work then the reasons should be properly explained to the employee, and they should be treated as if they are "unfit for work", continuing to receive sick pay as usual. The situation should then be reviewed again if the employee receives a further "may be fit for work" statement from their GP.

It is, however, important to remember that nothing in this new scheme changes practice's obligations under the Disability Discrimination Act 1995 to make reasonable adjustments when the particular employee has a "disability", and so where this may apply practices need to take care when suggestions for returning to work are dismissed.

Increased burden for practices
It is hoped that the "may be fit for work" option will be welcomed by many GPs and their patients because of the increased flexibility it creates to allow some individuals to get back to work. However, the new scheme inevitably increases the burden on GPs and practices.

GPs will now be expected to consider their patient's work in more detail than before, and whilst it is recognised that GPs are not expected to take the role of an occupational health advisor, at least some discussion with their patient about their work will be needed in order to complete the form constructively. This will undoubtedly place more pressure on them in an already limited appointment slot.

Some GPs may, in trying to be co-operative, in fact give unclear or unhelpful advice in the comments section of the form. Where a particular practice's GPs are not completing the forms helpfully, there could be an increase in correspondence from employers seeking clarification – increasing the administrative burden on practices as well as placing GPs under more time pressure in providing a reply.

Also, for the practice as an employer, any "may be fit for work" statement will immediately place a burden on them in considering the form with their employee. Where their GP has recommended an occupational health assessment or provided unhelpful guidance, the practice may frustratingly be left having to make further enquiries before assessing their employees' ability to return to work. 

Difficult patients/employees
While hopefully not commonplace, GPs may find that some patients are resistant to any suggestion they "may be fit for work", making consultations more challenging. An unhappy patient is more likely to complain, or express their anger at their GP or practice staff.

Difficulties may also arise if there is a disagreement over the recommendations for returning to work. For example, a GP may recommend a phased return which an employer can accommodate with a pro rated entitlement to pay until normal hours are resumed.

However, an employee who would be financially better off being off sick completely (in receipt of full pay) may not welcome this.  It may be that a mutually beneficial solution can be reached, but if not or if there is a dispute over attendance at work, disciplinary action may be needed.

Tips for practices

  • Encourage GPs to understand the new form and their role in completing it so that "may be fit for work" statements leaving the practice are constructive for patients and their employer to explore returning to work. 
  • Where further enquiries are made from employers, have a system in place for these to be dealt with expeditiously.
  • When receiving a "may be fit for work statement" meet with employees quickly and have meaningful discussions with them. Bearing in mind obligations under the DDA, ensure that if rejecting a recommended adjustment that this is done with considered and justifiable reasoning.
  • Consider whether employment contracts and sickness absence policies need updating to reflect the fit note system and dealing with the "may be fit for work" option.
  • Ensure any complaints policy is comprehensive and that patient-facing staff are aware of how to deal with difficult patients.

Summary
The success of the new scheme starts with GPs completing the forms properly, as their guidance and advice is pivotal in supporting patients and employers (of which their practice is one) to get those who can back to work.

Practice managers should therefore encourage their GPs to welcome the new system rather than see it as a hindrance.  GPs embracing the scheme is only half of the battle though, with practices – like any employer – having to play their part in considering any recommendations made.