A private matter?

MDDUS medico-legal adviser Dr Susan Gibson-Smith considers when it’s okay to disclose patient details without consent

HIPPOCRATES wrote in the 4th century BC: “Whatever I see or hear, professionally or privately, which ought not to be divulged, I will keep secret and tell no one.”

Confidentiality is the bedrock of the relationship between doctor and patient and has evolved to become a key principle of good medical practice as enshrined in guidance issued by the General Medical Council. The therapeutic relationship is one based on trust and doctors must take care not to undermine that trust by failing to keep personal details and discussions confidential. But that’s not to say all cases are clear cut. Consider the following scenario:

I had been seeing Mrs Smith for several months in regard to mild anxiety symptoms. This consultation was for a ‘cough and spit’, routine enough but she was very reluctant to be examined, asking simply for an antibiotic and a fit note for her work. In view of the pleuritic chest pain she was complaining of I persuaded her of the importance of my examining her chest. The bruises on her chest wall were several and fist-sized and the welt on her lower back was raw. With some encouragement she went on to show me her arms and legs, peppered with further bruises and some cigarette-shaped burn marks.

“He was really bad at the weekend. He thought I had been flirting when we were out on Friday. When he has had a drink there is no reasoning with him. I was really worried this time he might kill me.”

I asked her if she had considered reporting this to the police. She said she would never do that it. She said he really didn’t mean it and it was only when he had had too much to drink that he became violent. What duty do I have to respect her right to confidentiality or to breach it against her consent but for her own benefit?

Confidential medical care is recognised in law as being in the public interest and it is a patient’s right to expect that information about them will be held in confidence. However, whilst there is a clear public good in having a confidential medical service, it is also recognised that confidentiality is not an absolute duty and there can be circumstances in which it is entirely appropriate to disclose confidential information. These circumstances can be grouped under three broad headings.

Disclosure with patient consent

Obviously if a patient consents to the disclosure then it is entirely appropriate to share that information. However, it is advisable to check that the patient has been given sufficient information about the scope, purpose and likely consequences of the disclosure to be sure that the consent is fully informed. It is also worth checking the date when the consent was given as this can expire over time. If in doubt it is always worthwhile to check again with the patient.

Disclosure as required by law

Doctors must adhere to certain specific statutory requirements under which patient consent may not be required, for example notification of a known or suspected case of infectious disease. Various regulatory bodies, such as the Ombudsman or the GMC, also have statutory powers to access patients’ records without consent as part of their duties to investigate complaints, accidents or a health professional’s fitness to practise. If you are asked to provide information about a patient it is your responsibility to satisfy yourself that such disclosure is required by law or can be justified in the public interest. Even in cases where patient consent is not required GMC guidance states that you should inform the patient about such disclosures unless doing so would undermine the purpose of the disclosure.

Doctors also must disclose information if ordered to do so by a judge or a presiding officer of a court (e.g. sheriff or magistrate) but do retain the right to object if they believe the information they are being asked to disclose is irrelevant, such as information about a patient’s relative who is not involved in the proceedings. It is important to ensure that anyone ordering disclosure has the power to do so, for example solicitors or police officers cannot compel disclosure.

Disclosure in the public interest

In certain circumstances there will be a clear public interest in disclosing confidential information, such as in protecting individuals or society from risk of serious harm. The GMC advise that:

“Personal information may, therefore, be disclosed in the public interest without patients’ consent, and in exceptional cases where patients have withheld consent, if the benefits to an individual or to society of the disclosure outweigh both the public and the patient's interest in keeping the information confidential.”

Examples of this would be disclosing confidential medical information to the DVLA of a patient with epilepsy or dementia who is persisting to drive, or informing sexual contacts of patients with serious communicable diseases, or informing the police about knife and gun crime. The GMC provides supplementary guidance on these and other confidentiality matters at www.gmc-uk.org.

The bottom line is that doctors have the responsibility to weigh the harms that are likely to arise from non-disclosure of information against the possible harm both to the patient, and to the overall trust between doctors and patients, arising from the release of that information.

The guidance goes on to say that even if you are considering making a public interest disclosure you should still consider obtaining consent from the patient and inform them that a disclosure will be made in the public interest, unless you believe that to do so would put you or others at risk of serious harm, or would undermine the purpose of the disclosure.

If you do make a public interest disclosure you must document in the patient’s record your reasons for disclosing this information without consent and also any steps you have taken to seek the patient’s consent, to inform them about the disclosure and your reasons for not doing so. This is very important as you need to provide evidence of your decision-making process so that you can justify your reasons should you be called upon to do so at a later date.

Back to Mrs Smith

So how does this help me decide what to do with Mrs Smith?

I clearly do not have her consent to go to the police with this information and there is no legislation which would compel me to breach her confidentiality. I must therefore decide whether the benefits of disclosure outweigh both the public and Mrs Smith’s interest in keeping the information confidential. On reflection I consider that the disclosure might protect Mrs Smith from harm but not society in general, as there is no evidence that her husband is a threat to any other adult and I know that there are no children involved, so there is not a child protection issue.

GMC guidance on disclosures to protect the patient is quite clear: “It may be appropriate to encourage patients to consent to disclosures you consider necessary for their protection, and to warn them of the risks of refusing to consent; but you should usually abide by a competent adult patient’s refusal to consent to disclosure even if their decision leaves them but nobody else at risk of serious harm. You should do your best to provide patients with the information and support they need to make decisions in their own interests, for example by arranging contact with agencies that support victims of domestic violence.”

On balance I decide not to tell the police as I believe it is in Mrs Smith’s best interests that she continues to have trust in me as her doctor at the present time and to destroy that would cause more harm. Over the next few months I continue to see her and with the support of a counsellor she eventually decides to leave her abusive husband.

If you are ever in any doubt about confidentiality or whether you should disclose personal information about a patient without consent then please do not hesitate to pick up the phone to a medico-legal adviser at the MDDUS who, doctor-to-doctor, will guide you through your decision-making.

Dr Susan Gibson-Smith is a medico-legal adviser at MDDUS