Consent issues: If referred to an independent consultant & consent form is not signed, can the consultation continue?

Generally, an employer will have the right under the contract of employment to refer an employee for a medical report. Under the Data Protection Acts 1988 and 2003 (the “DPAs”); information relating to mental and physical health as “sensitive personal data”, and Section 2(B) (i) of the DPAs requires an employer to obtain explicit consent of an employee prior to dealing with such information. However, Section 2B (ii) provides for processing which “is necessary for the purpose of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment.

While it is best practice for an employee to sign a medical consent form,