Dr Sarah Jarvis BSc MB BS MRCGP
Confidentiality concerns are a frequent reason for members to contact the MDU. Dr Sarah Jarvis looks at situations where a doctor's duty of confidentiality to a patient may be called into question.
In general, confidentiality is a fundamental part of the doctor-patient relationship. That relationship is based on trust, and it is recognised that maintaining trust and not breaching confidentiality is very important. This is drummed into medical students from the earliest stages of their career.
However, the principle of confidentiality is not absolute. What happens where there may be competing needs when it comes to disclosure? For example, if a patient does not provide consent but where withholding information may put others at risk.
In general, requests regarding release of information can be classified into three areas:
- Information requested with the patient's consent
- Information which must be disclosed by law, and
- Information shared in the public interest.
It is important that, where consent cannot be obtained, the public interest is borne in mind. This includes the public interest in having a confidential medical service, so that patients will come forward and seek treatment – but of course, there may be issues regarding the safety of others if information is not disclosed.
If in your career you ever have to make a difficult decision regarding disclosure, we encourage you to seek advice from us, from senior colleagues and also the Caldicott Guardian of the organisation where you work, who is responsible for dealing with data protection and confidentiality. Doctors and students should be aware of local policies regarding disclosure, too.
Documenting your reasons is very important if you need to justify any disclosure you make without consent. Keep detailed notes of your decisions and why you made them.
It is important that, where consent cannot be obtained, the public interest is borne in mind.
Let's look at some scenarios where your duty of confidentiality might be challenged by the need to protect others from risk.
Under section 38B of the Terrorism Act 2000, all citizens (including doctors) must tell the police if they become aware of information that they believe would help prevent a terrorist act, or secure the arrest or prosecution of someone involved in terrorism. It is a criminal offence not to tell the police 'as soon as is reasonably practicable' in these circumstances, and conviction could result in a fine or up to five years in prison.
Even if the threshold for a disclosure required by law isn't met, disclosure may still be justified in the public interest if there are clear grounds for believing that it will protect a specific person or people – or the public, more broadly – from risk of death or serious harm.
Knife and gunshot wounds
A gunshot wound or injury sustained from an attack with a knife, blade or sharp instrument, must be reported to the police whenever a victim arrives at hospital. Accidental injury from, or self-harm with, a knife or blade will not usually require notification. Identifying details such as name and address should usually only be disclosed with the patient's consent. If the patient refuses, the information may only be disclosed if you consider it is in the public interest, or you are required to by court order.
Identifying details such as name and address should usually only be disclosed with the patient's consent.
Fitness to drive
Sometimes, doctors have concerns that a patient is not fit to drive and advise the patient of this. Whilst generally, patients do listen to and take the advice of their doctor, there may be situations where the patient may disagree with the doctor and continue to drive against their advice. However, as well as the risk to the patient, there is also the issue of other road users.
Whilst the law advises that the driver must inform the DVLA or DVA of any illness affecting their ability to drive, drivers do not always do this. The GMC guidance for doctors advises:
'If you consider that failure to disclose the information would leave individuals or society exposed to a risk so serious that it outweighs patients' and the public interest in maintaining confidentiality, you should disclose relevant information promptly to an appropriate person or authority. You should inform the patient before disclosing the information, if it practicable and safe to do so, even if you intend to disclose without their consent.'
The GMC also has specific guidance concerning the DVLA/DVA, which states:
'If you do not manage to persuade the patient to stop driving, or you discover that they are continuing to drive against your advice, you should consider whether the patient's refusal to stop driving leaves others exposed to a risk of death or serious harm. If you believe that it does, you should contact the DVLA or DVA promptly and disclose any relevant medical information, in confidence, to the medical adviser.'
The guidance makes it clear that the same principles would apply to other occupations involved in regulated transport, such as pilots, seafarers and train drivers.
Top tips when dealing with requests for information
- Check if patient consent has been provided, or if it can be sought. If it cannot be sought, you will need to bear in mind the reasons why not, and act accordingly.
- Make sure that you document the steps you have taken in considering consent and the public interest, so that you can justify the decision you take if necessary.
- Seek advice at an early stage from the MDU and from senior colleagues in your organisation.
- Be mindful of the statutory obligations when you must disclose.
Dr Sarah Jarvis BSc MB BS MRCGP
MDU medico-legal adviser
Sarah trained in London and undertook an intercalated BSc which involved medical ethics. After graduating she spent several years in A&E and general medicine before becoming a GP. She was a GP principal and trainer and was involved in medical student teaching. She also sat on the GMC and MPTS Fitness to Practise Panels, eventually chairing them.
See more by Dr Sarah Jarvis BSc MB BS MRCGP