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Breaching confidentiality

A doctor’s duty to breach patient confidentiality and report concerns can come into play in a number of scenarios. Gareth Gillespie highlights two recent dilemmas from the MPS caseload in Trinidad

CASE 1: Foreign bodies

Mr Y was taken to hospital by his relative after complaining of stomach pains and bowel obstruction. Following his admission, he underwent a laparotomy, where 20 pellets of carefully-packaged cocaine were found in his abdominal cavity. During the surgery, it was found that Mr Y’s bowel was perforated, as nine of the pellets had penetrated the bowel; although 17 pellets were successfully removed and three passed from the body in Mr Y’s stools, shortly after surgery Mr Y’s condition deteriorated and he developed sepsis as a result of the bowel perforation. After being transferred to intensive care, Mr Y’s condition eventually improved and he was discharged after making a full recovery.

However, the surgeon who removed the cocaine pellets instructed the other clinical staff present not to take any photographs of them, and to instead repackage them in a resealable storage bag. They were then returned to Mr Y.

The matter leaked to the media who focused on the failure by the clinical staff to report the illegal drugs.

At the time of Casebook going to press, the matter is still being investigated.

MPS advice

The case raises an important issue about when a doctor should breach a patient’s confidentiality. In this case, the surgeon – and anyone else in the clinical team who was aware of the nature of the objects within Mr Y’s body – should have reported the presence of suspected illegal drugs in Mr Y’s possession. Failure to do so potentially exposes clinicians to two particular laws.

Criminal Law Act

Under Section 5 of the Criminal Law Act, a person may be guilty of an offence if he assists a person who he knows or believes is guilty of an arrestable offence. He must, however, know or believe the individual to be guilty or charged of an arrestable offence, or has committed an arrestable offence or does any act to impede the individual’s apprehension or prosecution.

Dangerous Drugs Act

Under Section 27 of the Dangerous Drugs Act, any person who attempts, aids, abets, counsels or procures the commission of drug trafficking is guilty of an offence. It is to be noted that neither Act explicitly states (as does the Sexual Offences Act and Coroners Act) that there is a general statutory duty to report illegal activity.

CASE 2: Child protection

A debate in the Trinidad press was sparked off earlier this year by comments relating to the country’s ongoing issue with underage pregnancies. After Education Minister Dr Tim Gopeesingh revealed that there were around 2,500 schoolgirl pregnancies in Trinidad each year, one finger of blame was pointed at the country’s doctors for their role in such pregnancies – which essentially equate to statutory rape – going unreported.

Margaret Sampson- Browne, head of the police victims and witness support unit, was quoted as saying: “Children are going into the hospitals and the health centres and having children, and the doctors are not informing the police, and this cannot continue. We have to hold some of these doctors to account and start jailing them.”

Health Minister Dr Fuad Khan then added to the debate by saying that doctors were bound by doctor–patient confidentiality. “To go against this is a breach of the privacy law,” Dr Khan said, “and therefore paves the way for the doctor and the medical institution for medical litigation, whether private or public.”

This prompted a concerned MPS member to get in touch for advice and guidance.

MPS advice

It may help to relate to the situation as it is in the UK, since in strict legal terms there is very little difference. We cannot comment on the likely tariffs that would be handed out by the English courts but in terms of the legality of it, even consensual sexual relations with a girl under the age of 16 is technically regarded in English law as statutory rape. There is no distinction made regarding the age of the girl’s partner. The law is even stricter if the girl is under the age of 13.

However, built into the legal system is discretion in how the authorities pursue and prosecute a case. In England the police, on completing their investigation, will recommend whether or not to pursue a case to the Crown Prosecution Service (CPS), who will weigh up the severity of the crime, the nature of the crime and the public interest as well as the individual perpetrator’s criminal history, before determining whether a prosecution should be brought.

There are clearly statutory occasions where doctors have to provide information that will in essence breach that relationship, but those are few and far between and would need to be justified for good reason

The police also have some discretion of their own as to whether they pursue a criminal action against a particular individual. Thus with respect to statutory rape very different views would be taken, for example, of a 15-year-old-boy sleeping with a 14 or 15-year-old-girl and a 31-year-old man sleeping with a 15-year-old-girl. Anyone sleeping with someone aged under 13 years is very likely to end up with a prosecution, even if they themselves are of a very similar age, because the law is that much stricter.

The confidentiality of the relationship between doctor and patient is of extreme importance for the reasons clearly explained by Dr Khan in his interview with the Trinidad and Tobago Guardian. English law, again, recognises the importance of this relationship and for the most part will not obligate a doctor to breach that relationship, even where the doctor is aware that a patient has committed a crime.

There are clearly statutory occasions where doctors have to provide information that will in essence breach that relationship, but those are few and far between and would need to be justified for good reason. In the event the police need information from a doctor where the doctor is not prepared to provide it, because it would breach that duty of confidentiality, the police do have the option to obtain court orders from a judge to force the doctor to reveal the relevant information.

That said, Medical Councils make it clear that there are circumstances in which a doctor may justify a breach of his duty of confidentiality, even though it undermines all the principles that Dr Khan clearly lays out. With reference to the circumstances outlined in the current controversy, not all cases of statutory rape would fall into the categories that a UK doctor would regard as justifying a breach of confidentiality.

Where the relationship was clearly consensual and the age difference minimal, most doctors would contend that the breach of their relationship with their patient would be wholly inappropriate. It is likely that the authorities would agree with them. In the case of a child under 13, however, such is the strictness of the law, the doctor would be obliged to report the case to the child protection teams, though not necessarily directly to the police. Of course, the issue of patient consent is also raised here. Where the disclosure of medical information is required by law, consent from the patient is not required.

Doctors should not disclose any more information than is absolutely necessary and the patient should be made aware of the disclosure, and informed about why the information is being disclosed, unless it is not practicable to do so; for example, if the patient cannot be contacted quickly enough, or if informing the patient would defeat the purpose of the disclosure. It is important to fully document any decisions about the information that is disclosed. Many young people under 16 have the capacity to consent to the disclosure of their medical records and doctors should therefore consider whether to discuss disclosing the information with them and whether it will be possible to obtain their consent.

If a child or young person under 16 refuses consent, doctors should nevertheless disclose the information if this is necessary to protect the child, young person or someone else from serious harm, or if disclosure is otherwise justifiable in the public interest. In the context of what might amount to a serious sexual offence involving a child, a doctor would have to be particularly alert to the possibility of other children who might be at risk. Doctors should also follow up their concerns if they believe that their concerns have not been acted on appropriately, leaving a child or young person at risk of, or suffering, abuse or neglect.

While a legal system must provide laws that are clearly stated in black and white, it must also have built into it a system to allow discretion to account for specific circumstances

This may involve taking those concerns to the next level of authority. In this situation a doctor’s first concern must be the safety of children and young people. Doctors must inform an appropriate person or authority promptly of any reasonable concern that children or young people are at risk of abuse or neglect, when that is in a child’s best interests or necessary to protect other children or young people. Doctors must be able to justify a decision not to share such a concern, having taken advice from a named or designated doctor for child protection or an experienced colleague, or a defence or professional body.

Concerns, discussions and reasons for not sharing information in these circumstances should also be carefully recorded. The serious cases, however, are those where there is a substantial age discrepancy between the girl and the man with whom she is having a sexual relationship. Quite what constitutes a significant age difference clearly is a matter of judgment, but most people would suggest that for a girl under the age of 16 a man who is no longer in his teenage years is already substantially older, both chronologically and in maturity, and may be able to exert undue influence and control over that girl so as to bring into question the consensuality of the relationship.

The doctor may or may not be able to elicit information that identifies how much concern to have about their relationship, but most doctors who identify such differences in age would be likely to have a discussion with the authorities involved in child protection, if not with the police, in such circumstances. While a legal system must provide laws that are clearly stated in black and white, it must also have built into it a system to allow discretion to account for specific circumstances.

Thus for the situations outlined by this controversy doctors must have the discretion and the training to manage that discretion, to determine when it is appropriate to protect the confidentiality of their relationship with their patient and when the legal technical criminality of their activity results in the need for medical attention but also warrants the doctor breaching that confidentiality, because the crime is of a degree that the criminal authorities need to be involved in order to protect the child.

Of course, conveying the complexity of this issue in a public forum, where debate is often at a level of simplistic soundbites, can be very difficult.

With thanks to Dr Jonathan Bernstein for his assistance with this article.

 

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1 comment
  • By naye hamdi on 26 September 2017 10:42 your article was a good resourse thenks!!!
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