On the ethics and deontology of sick leave and discharge reports and certificates

Creation: Central Commission of Deontology of the Spanish Medical Association.
source : Comisión Central de Deontología de la Organización Médica Colegial Española.
language original: Spanish.
Approval: General Assembly of 26-V-2001.
Publication: Revista OMC, August 2001.
Copyright: No.
Checked on 16 May 2002.

Declaration of the WTO Central Deontology Commission on the ethics and deontology of sick leave and discharge certificates and reports in Primary and Specialised Care and the role of medical inspectors in their control and supervision.

Introduction

skill The Spanish Constitution recognises among the fundamental rights of Spaniards the right to work (Article 3.5.1), as well as the right to health protection (Article 43.1), with the public authorities organising and protecting public health by means of preventive measures and the necessary benefits and services (Article 43.2) and implementing a policy of prevention, treatment, rehabilitation and integration of the physically, sensorial and mentally handicapped (Article 49). In order to make the right to health protection effective, the General Health Act of 14 April 1986 was passed.

Likewise, the Constitution recognises the right of workers to strike to defend their interests (Article 28.2), but it also recognises the right of workers and employers to adopt collective conflict measures (Article 37.2), ensuring the functioning of essential services for the Community. In other words, constitutional rights are not absolute; they are limited when they come into conflict with other fundamental rights of the individual or of society and must be protected by the public authorities.

Social Security guarantees Spanish workers and foreign workers with a permit to residency program and work in Spain adequate protection, through health and economic benefits, in situations of common illness and non-occupational accident, occupational illness and occupational accident, and maternity.

This is therefore an area where health, social, labour, etc. problems are intermingled, it is not uncommon to find fraudulent use of Constitutional Law for health protection, either to maintain a prolonged leave work situation due to temporary incapacity or to avoid, individually or collectively, obligations derived from having to ensure the functioning of essential services for the community in situations of labour conflicts or strikes, resorting to the situation of leave work situation due to temporary incapacity to avoid the minimum services set by the Administration, regardless of whether these could be abusive.

These situations could suggest collusion between the fraudsters and the doctors who provided them with the leave certificates for temporary incapacity or, perhaps, a failure on the part of the doctors to check the nature of the ailments that could justify the temporary incapacity, which in any case would deteriorate the image of the doctor and go against the image of the whole profession.

For this reason, the Central Ethics Commission has considered it appropriate to make a statement for the proper conduct of medical professionals who manage and process temporary incapacity.

General

Temporary incapacity is understood to be the situation in which an insured person who, due to illness (common or professional) or accident, is incapacitated for work, generally for a period of more than 72 hours, while receiving attendance from the Social Security. Absence from work space for a period of time less than the aforementioned is considered as minor non-attendance and the financial payment during this period is generally regulated in the collective agreements of each business and it may be obligatory to present a certificate of non-attendance in which case the certificate of leave could be interpreted as such.

The situation of the worker with temporary incapacity generates some benefits of a health nature and others of a financial nature ( subject ).

Since the leave for temporary incapacity is requested by the worker who states that he is unable to work, the doctor is almost always obliged to provide it, unless the insured person's allegations are easily interpreted as grounds for refusal, or are manifestly suspected of fraud. The collective leave of a large number of workers would raise suspicions of fraud, but this situation could only be perceived by the doctor in the event of an unusual number of workers from the same business requesting the leave in a short space of time, although it would be difficult to detect among the first ones to request it, since these workers could be assigned to different doctors depending on their places of residency program and, except in small urban centres, the appreciation of the fact could go unnoticed.

framework Legal

The legal framework of temporary incapacity is made up of a series of Laws, Royal Decrees and Ministerial Orders which are cited at the end as an appendix. The legal framework does not constitute subject of pronouncement of the Central Commission of Deontology, Medical Law and Visa, unless it is in clear confrontation with the principles of medical ethics and deontology.

framework deontological

The Code of Medical Ethics and Deontology of the Spanish Medical Association (Organización Médica Colegial) is available at framework .

A) Primary care physicians

1. The reports of leave for temporary incapacity due to common illness are generally issued by the primary care doctors of INSALUD or of the Autonomous Communities that have assumed the transfer of health care. However, Royal Decree 575/97 of 18 April 1997 and the Ministerial Order of 19 June 1997 do not specify that they are issued solely and exclusively by these doctors. Article 1.1 of Royal Decree 575/97 states that the leave medical report shall be issued "by the doctor of the Public Health Service who has carried out the examination of the worker concerned", while the Ministerial Order of 19 June 1997, which implements Royal Decree 575/97, states in Article 2.1 that "the medical report of the worker concerned shall be issued by the doctor of the Public Health Service who has carried out the examination of the worker concerned".1, that "the medical report of temporary incapacity shall be issued, immediately after the medical examination of the worker, by the doctor who carried it out", thus leaving open the possibility that such sick leave may be issued by any doctor in the service of the Public Health Service, being equally applicable to the issuing of discharge certificates.

2. The control of sick leave is also the responsibility of these doctors, but they can also be controlled by the doctors of the Mutual Insurance Companies for Accidents at Work and Occupational Diseases (MATEP) and by those of the Companies Collaborating in the Management of the General Scheme (Insurance Companies), although these companies can use their own doctors or doctors from the Social Security (R.D.: 575/97, art. 3.2. and art. 4.1 and 4.2.).

3. Discharge and discharge reports are official documents and the physician is deontologically obliged to issue them with authenticity and veracity as stated in Article 11.1 of the Code of Medical Ethics and Deontology (C.E.D.M.).

4. In order to ensure the authenticity and veracity of the patient's leave or discharge document, but also because of the right that all patients have to a medical care of human and scientific quality (C.E.D.M.; Article 18), the doctor has the duty, before issuing the corresponding report leave, to try to verify, by means of a physical examination and examination of the patient, the ailment alleged by him/her for apply for the temporary incapacity, even knowing that many of the causes most frequently alleged as a request for leave are difficult to verify in the examination carried out in the doctor's office or health centre, for example, low back pain may or may not be accompanied by contracture of the paravertebral musculature, arthralgia need not be accompanied by signs of phlogosis or functional impotence, a headache or migraine need not be accompanied by signs of neurological focality, or flu may be accompanied by pathological pulmonary auscultation.

If the semiological examination carried out does not provide sufficient data for a correct professional decision or if he/she considers it convenient for the study of the patient, the doctor must apply for the complementary examinations or reports that he/she considers appropriate, but during the periods of observation due to common or professional illness, he/she will be obliged to prescribe the leave if the exercise of the work is harmful to the worker.

5. Both in issuing reports of temporary incapacity and in prescribing the treatment he deems appropriate, the doctor must have absolute freedom and independence (article 20.1 of the C.E.D.M.) and not be pressured either by the insured or by the institutions or the Health Administration (articles 9.3, and 37.2 of the C.E.D.M.), but at the same time the doctor must be aware of his professional duties towards the community, know that he is a manager of other people's resources, and that he is ethically obliged to achieve the optimum performance of the means that he has at his disposal.), but at the same time the doctor must be aware of his professional duties towards the community, know that he is a manager of other people's resources, and that he is ethically obliged to achieve the optimum performance of the means that society places at his disposal (article 6.1 of the C.E.D.M.), so that in his professional actions the principle of justice must always take precedence over the principle of beneficence.

This means that the doctors who manage temporary incapacity are ethically obliged not to prolong leave and to discharge the insured once the cause of the temporary incapacity has disappeared, they have verified the non-existence of the ailment argued by the patient as the cause of temporary incapacity, or in the other cases contemplated by law. If they suspect a fraudulent act, they should discreetly inform the health inspection services at knowledge without this implying a breach of professional secrecy, adopting the opportune and necessary measures to preserve the confidentiality of the medical data (article 16 of the C.E.D.M.).

6. In order to encourage the exercise of the above, primary care doctors have a guide of financial aid for the management of temporary incapacity, as well as a practical guide of standards for the duration of temporary incapacity processes, with the aim of detecting abnormal deviations in the duration of the leave for a given process, in order to avoid possible abuses in the duration of the leave, proposing control mechanisms to the Inspectorate when they observe unjustified deviations in the duration of the same.

B) Specialised care physicians

7. Although at present the management of most of the reports of leave and discharges are controlled by primary care doctors, especially in the territory not transferred from INSALUD, these reports could, in application of the provisions of Royal Decree 575/97 of 18 April and the Ministerial Order of 19 June 1997, be issued by specialised care doctors, both hospital and non-hospital. However, daily practice has meant that, in recent times, fewer and fewer specialised care doctors issue them, and if they do so, they are subject to the same ethical and deontological imperatives as primary care doctors.

8. Regardless of the above, specialised care physicians are ethically obliged to share, without any reservation, their knowledge with primary care physicians, for the benefit of patients (Article 31.3 of the C.E.D.M.), advising them on those matters in which, as specialists, they were consulted. The relationship between primary and specialised care doctors should be as fluid and extensive as patient care requires, ensuring that patients are not harmed by possible discrepancies in their professional criteria or by unjustified delays in the issuing of the relevant reports.

9. If the specialist care doctor has not personally issued the patient's leave , but from his specialist professional assessment he considers that the patient should not be in a situation of temporary incapacity, he will discreetly inform the primary care doctor who is directly managing the same so that he can take the measures he considers appropriate, without interfering in the attendance that the latter is providing the insured person (article 32.2 C.E.DM.), on the understanding that he is directly responsible for the patient and that, in this specific case, the specialist doctor acts as the doctor consultant.

C) Of medical inspectors

10. The control mechanisms for sick leave and discharges from work fall to the medical inspectors of INSALUD and INSS, in the case of common illness and non-occupational accidents, and to the doctors of the Mutual Insurance Companies for Accidents at Work and Occupational Diseases (MATEP), in cases of occupational illness and occupational accidents, although these mutual insurance companies may also control sick leave for common illness in workers whose companies have protected the risk with the corresponding mutual insurance company, and may require medical examinations by their corresponding medical services.

11. Inspecting physicians shall conduct their professional activities in accordance with the requirements of the Code of Medical Ethics and Deontology applicable to them (Articles 2.1 and 41.1) and their actions as such shall be incompatible with those of attendance to the same patient (Article 43.3).

All medical acts, both of the INSS inspecting doctors and of the doctors in the service of the MATEP and those of the Self-insurance Companies, shall be confidential, shall respect the patient's right to privacy and shall be subject to professional secrecy (Article 14 of the C.E.D.M).

12. It is contrary to Medical Ethics and Deontology to receive any commission or financial incentive, apart from the remuneration that, in each case, the doctor has established according to the circumstances of the service provided and his professional qualifications (Article 40.2 and 40.4 of the C.E.D.M.).

For this reason, the control of sick leave and discharges cannot be motivated by the economic incentive that some mutual insurance companies or self-insurance companies may have with doctors who reduce the insured person's leave time, or give a greater number of "discharges for economic purposes" in which the insured person, while continuing to work leave , would no longer receive the economic subsidy corresponding to this situation. This subject of discharges could also be proposed by the INSS inspectors, but in this case it requires confirmation by the INSALUD Health Services Inspectorate, through its area inspectors, which is an additional guarantee mechanism for the insured person, which is lacking in the MATEPs where only the criteria of the mutual insurance company's doctor is required. However, this is a topic that, although contemplated in chapter VI, article 44 of the Royal Decree-Law 6/2000, of 23 June, on Urgent Measures to Intensify the skill of Goods and Services Markets, is still awaiting a rules and regulations that develops it.

To summarise what has been indicated above, primary and specialised care doctors dependent on the Public Health Services, INSALUD and INSS inspectors, and those belonging to the MATEPS and Collaborating Companies, are subject to the existing legal and ethical-deontological rules and regulations , so that possible discrepancies of opinion between doctors will never be shared with the insured and must be resolved by the possible Inspection Services, or debated in the heart of the Medical Associations.

Madrid, 2/3 February 2001

ANNEX. framework legal of Temporary Incapacity

1. Royal Decree-Law 5/1992 and Law 28/1992.
2. Royal Decree Law 1/1994 of 20 June 1994.
3. Law 42/1994 of 30 December 1994. Royal Decree 1300/95 of 21 June 1995. Royal Decree 1993/95 of 7 December 1995.
4. Law 13/1996 of 30 December 1996 on fiscal, administrative and social measures.
5. Royal Decree 575/1997 of 18 April 1997 amending certain aspects of the management and control of the Social Security financial benefit for temporary incapacity.
6. Royal Decree 576/1997 of 18 April 1997 amending the general regulations on collaboration in the management of mutual insurance companies for accidents at work and occupational diseases in the social security system.
7. Ministerial Order of 19 June 1997, implementing Royal Decree 575/1997.
8. Order of 18 September 1998, amending the Order of 19 June 1997.
9. Royal Decree-Law 6/2000, of 23 June 2000, on Urgent Measures to Intensify the Intensification of the skill of Goods and Services Markets.