Written by Nadine Simpson-Ataha
The story of Italian surgeon Paolo Macchiarini is continuing to have repercussions in the world of science, most recently leading to the resignation of two Nobel Prize judges. Anders Hamsten and Harriet Walberg are no longer part of the prestigious Nobel Assembly which awards the Nobel Prize in Physiology and Medicine because of their role in the recruitment and contract extension of Macchiarini at a Swedish university and university hospital .
The surgeon was taken on despite the Karolinska Institutet being provided with "remarkably negative references" - that Macchiarini's CV contained false statements and there were "doubts" surrounding his research.
At the time of writing, seven of the nine people Macchiarini operated on have died. This is a timely, sad and extremely serious reminder of the importance of getting the provision and request of references right. Especially in the healthcare profession.
The challenge when requesting and providing references as an employer or in a personal capacity is to effectively manage numerous competing duties.
Duty of care
There is no general obligation to request a reference for a potential new member of staff but if you choose to provide a reference about somebody you owe that person a duty of care to provide information that is true, accurate and fair, and does not give a misleading impression. Mistakes in detail will not necessarily lead to liability.
The same duty of care is owed to the recipient of the reference unless an appropriately worded disclaimer is included in the reference document. This can protect against a claim of negligent misstatement.
Duty to act in the best interest of the public
In the context of healthcare recruitment NHS guidance says that all references provided for healthcare workers should have a specific section for information considered to be "reasonably relevant" to fitness to practice that has been a cause of concern regarding public and/or patient safety.
This reflects the obligations on registered healthcare professionals, under their Codes of Conduct, to raise concerns if they consider the fitness to practise of a colleague may be putting patients at risk and is in line with public sector (Nolan principles) duties of honesty and integrity.
This guidance also promotes the use of an internal alert system to other NHS and independent healthcare organisations that a person works for, or is moving to, if poor performance or conduct has been upheld through investigation. The staff member's conduct or performance must also relate to public and/or patient safety, such as disciplinary action, repetitive poor work performance, serious clinical negligence events or high levels of patient complaints.
Information contained within a reference is confidential if it is not public knowledge, e.g. a referee's personal opinions about a former employee. The confidential nature of that information is not necessarily protected once the reference is with a prospective employer and may be disclosed even without a referee's consent.
The possible confidential nature of information about an employer or third parties should also be considered if, for example, disciplinary action was taken in relation to an event involving another member of staff or a person's conduct whilst carrying out high level, pioneering research.
Current data protection law protects an employer from having to disclose a reference about a current staff member to them but the information contained within a reference is classed as personal data and must be processed in accordance with the data protection principles.
Information about, for example, a person's sick leave may be classed as sensitive personal data which means that it can only lawfully be disclosed if a pre- condition is met such as when an employee gives explicit consent.
Employers are also obliged to consider stopping the processing of a person's personal data, such as a reference about them, if it is objected to on the grounds of causing or being likely to cause "unwarranted and substantial damage or distress". Note that the rights of individuals as 'data subjects' will be enhanced when the new General Data Protection Regulation comes into force in 2018.
Managing these competing duties is not an easy task.
In the financial services sector, the balancing of these conflicting responsibilities is determined by a legal obligation to seek and provide references for people who carry out controlled functions. These individuals must be certified as fit and proper to carry out their role based on certain criteria. Any information that is material to the assessment of their ability to carry out their work must also be reported to a regulator.
This means that there is an ongoing centralised record of individuals who perform controlled functions and a legally supported system of transparency. An employer need only be concerned with taking reasonable care that the facts and opinions expressed are true, accurate and fair.
In the recruitment of Paolo Macchiarini the "remarkably negative references" were not passed onto his file or to the relevant Recruitment Committee. Whilst there is no guarantee that the story surrounding him would be any different if they had been, more interested parties would have had all of the information available to them to make a fully informed recruitment decision.
In the healthcare sector, even with existing NHS guidance and Codes of Conduct, the law that must be considered when it comes to references is complex. A clear framework based on the financial services sector could help to provide clarity.