Public interest justification to breach confidentiality

You must weigh the harms that are likely to arise from non-disclosure of information against the possible harm to the patient

The public interest justification for disclosure usually turns on the threat of serious harm to others.

The GMC’s guidance says: “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.

You must 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.

“Before considering whether a disclosure of personal information would be justified in the public interest, you must be satisfied that identifiable information is necessary for the purpose, or that it is not reasonably practicable to anonymise or code it. In such cases, you should still seek the patient’s consent unless it is not practicable to do so, for example because:

a. the patient is not competent to give consent, in which case you should consult the patient’s welfare attorney, court-appointed deputy, guardian or the patient’s relatives, friends or carers
b. you have reason to believe that seeking consent would put you or others at risk of serious harm
c. seeking consent would be likely to undermine the purpose of the disclosure, for example, by prejudicing the prevention or detection of serious crime, or
d. action must be taken quickly, for example, in the detection or control of outbreaks of some communicable diseases, and there is insufficient time to contact the patient.”⁵

Reports to the DVLA/DVA

Before contacting the DVLA or DVA you should try to inform the patient of your decision to disclose personal information

Drivers have a legal obligation to inform the DVLA (the DVA in Northern Ireland) if they are diagnosed with a medical condition that could impair their fitness to drive.* If they refuse to do so, and continue to drive, the onus is then on their doctors to inform the DVLA/DVA themselves. This should, however, only be a last resort after having made all reasonable efforts to get the patient to agree to stop driving and to inform the DVLA/DVA.

The GMC offers the following guidance: “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 contact the DVLA or DVA immediately and disclose any relevant medical information, in confidence, to the medical adviser.

“Before contacting the DVLA or DVA you should try to inform the patient of your decision to disclose personal information. You should then also inform the patient in writing once you have done so.”⁶

* The DVLA has developed an At a Glance Guide to the Current Medical Standards of Fitness to Drive (February 2010), which can be downloaded from the DVLA website.

Child protection

In any case involving the welfare of a child, the child’s best interests are paramount. This may require disclosure of confidential information about the parents to Social Services and/or the police. As a matter of good practice, the doctor should always explain his/her responsibilities to the parents and, where possible, obtain their consent to disclosure, except in rare circumstances, where to do so would put the child at increased risk.

Communicable diseases

In some circumstances, you are obliged to disclose information to comply with a statutory requirement. An example is the requirement to notify certain communicable diseases. In such cases, you should disclose the information, even if you do not have the patient’s consent. You should also inform the patient of the disclosure and reason for it. However, it is important to protect the patient’s personal information from improper disclosure, as all patients are entitled to good standards of care, regardless of any diseases they may have.⁷

Confidentiality after death

The duty of confidentiality does not end with death. Any person who has a claim arising from the death has a right of access to the relevant parts of the health records of a dead patient under the Access to Health Records Act 1990. In all other circumstances, the consent of all the executors or administrators to the estate should be obtained before disclosure is given.

A positive duty to disclose

Doctors have a statutory duty to report certain information – for example, notification of births, deaths, infectious diseases and terminations of pregnancy carried out under the Abortion Act. In these circumstances, no consent from the patient is required and even if the patient objects, the doctor is obliged to make the notification.

Insurance and employment purposes

You may be asked to provide patient information to an insurer or employer. The patient must be fully informed about this request and understand the reasons for and scope of the intended disclosure. You must also have obtained or seen written consent to the disclosure from the patient, or from someone with the authority to act on the person’s behalf. Only relevant information should be disclosed, and you should offer to let the patient see any report you write on them.⁸