Confidentiality and disclosing information to protect others

Mary Agnew is Assistant Director of Standards, Ethics and Education Policy at the General Medical Council. Here she looks at the often difficult decisions doctors have to make about whether to disclose confidential patient information.

**Please note: in light of the publication of our revised guidance on confidentiality, which comes into force on 25 April 2017, this blog post was reviewed on 25 January 2017. The position and advice outlined here remain the same as under the 2009 guidance.**

Confidentiality is one of the most frequently viewed pieces of guidance on our website and the Standards team are asked about this topic more often than any other. This isn’t, perhaps, surprising. Doctors hold a lot of personal and sensitive information about patients. If patients aren’t confident that this information will be kept safe, they may be unwilling to trust their doctors and withhold information critical to their care or not seek medical help at all.

But while there is a clear public good in having a confidential medical service, the duty of confidentiality isn’t absolute. Doctors can disclose information about a patient if the patient consents, if the law requires it, or if disclosure is justified in the public interest to protect individuals or the wider public from risks of death or serious harm – for example from serious crime or serious communicable diseases.

Public interest disclosures are not always clear-cut and require a careful weighing of all of the factors involved. The following are some examples of situations that we know doctors find difficult, and how our guidance applies.

Terrorism prevention and confidentiality

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.

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.

In July the new ‘Prevent duty’ came into force. The duty requires health bodies (such as NHS Trusts, CCGs and Health Boards) as well as schools, local authorities, prisons and police to have ‘due regard to preventing people from being drawn into terrorism’.

The ‘Prevent duty’ doesn’t apply to individual doctors, or change the circumstances in which they are obliged to report concerns about patients. But it is a reminder that in their various roles, doctors may come across information that makes them suspect that a person is involved in terrorist activity.

The Department of Health has issued guidance on the duty for healthcare professionals that sets out the types of behaviour doctors should be aware of. This can be found in Building Partnerships, Staying Safe: The health sector contribution to HM Government’s Prevent strategy: guidance for healthcare organisations. The advice reassures doctors that they are not expected to take on a surveillance role, but sets out the sorts of steps they might take if they are concerned that a patient may be involved in, or at risk of being drawn into, terrorist-related activity.

Doctors should also follow the advice in our confidentiality guidance, where we say that they must disclose information if it is required by law. We also make it clear that doctors may be justified in disclosing information about patients in the public interest, for example to assist in the prevention, detection or prosecution of serious crime. As a general principle doctors should ask for consent before disclosing information about a patient – but we recognise it might not always be safe or feasible to do so.

These can be complex judgements to make and we advise doctors to seek the advice of experienced colleagues, a Caldicott Guardian or equivalent, or their professional body if they are in doubt.

Fitness to drive and reporting concerns to the DVLA/DVA

This issue has been in the news recently, following the Fatal Accident Inquiry into the tragic bin lorry crash in Glasgow.

Our guidance Reporting concerns about patients to the DVLA or DVA explains how the principles in Confidentiality apply when a patient may be unfit to drive but carries on doing so. The doctor’s key responsibility is to tell a patient if they have a condition that may affect their ability to drive and remind them of their legal duty to inform the DVLA/DVA. If the patient can’t understand or doesn’t accept this and continues to drive in spite of efforts to persuade them to stop, the doctor should decide whether they would be justified, on public interest grounds, in contacting the DVLA/DVA themselves.

In making this decision, the doctor will need to weigh the various potential harms – to the patient’s trust in them, to trust in doctors generally (by creating the impression that doctors will automatically tell the authorities about a patient’s medical condition) and to the public if the patient continues to drive. While we understand that the decision to breach a patient’s confidentiality isn’t always an easy one, if a patient poses a risk of death or serious harm to others and continues to drive, then the balance of interests falls in favour of disclosing relevant information, in confidence, to the DVLA/DVA medical advisers.

Serious communicable diseases

Our guidance on Disclosing information about serious communicable diseases deals with decisions about whether to disclose information about a patient with such a disease in order to protect others – the patient’s children, their sexual contacts, the healthcare staff who are treating them, or the wider public. These decisions are straightforward where there is a statutory requirement (for example, to notify government agencies of a known or suspected case of certain infectious diseases such as Viral Haemorrhagic Fevers). Otherwise, it’s important that doctors weigh up the potential risks and harms to the patient and others, and don’t make assumptions about those risks or assume that disclosure is automatic.

To take one instance, doctors still sometimes think that they are obliged – regardless of the patient’s wishes – to disclose a patient’s HIV diagnosis to their GP or doctors treating them for other conditions. However, factors such as the use of universal precautions to protect healthcare workers and patients during exposure-prone procedures may mitigate the risk and weigh against disclosure where the patient objects. Guidance on protecting healthcare workers from blood-borne viruses is provided by the Expert Advisory Group on AIDS, who can be contacted at EAGA@phe.gov.uk.

Confidentiality guidance review

We’re reviewing our Confidentiality guidance, and related explanatory statements, including those I’ve mentioned above. We’ll be running a three month public consultation on the revised guidance starting at the end of November 2015, so that doctors and other key stakeholders can have their say. We’ll be promoting the consultation on our website, through our social media channels and in our email bulletins, so watch this space!

Mary Agnew

Mary Agnew, Assistant Director of Standards, GMC

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