Clarification
In the printed version of "A duty to treat…and to tell?” Casebook (Vol 20, Issue 1), we state that GPs can electronically tag firearms ownership on a patient’s medical records and that the BMA supports this policy. However, the BMA states that: “Advice from the Information Commissioner’s Office indicates that holding this data would be in contravention of the Data Protection Act and electronic tags should therefore not be used for this purpose.”
Confidentiality is the foundation stone of the doctor–patient relationship. However, it is not absolute; disclosures are allowed without consent in instances where it is in the public interest to do so, and such disclosures are sometimes even required by law. Sarah Whitehouse looks at a doctor’s responsibility to their patients and to society
Rioting in England in August 2011 brought this dual responsibility to patients and society to the fore. The GMC states that disclosure of a patient’s personal information may be in the public interest, if it is likely to protect individuals or society from risks of death or serious harm, such as serious communicable diseases or serious crime, or as a result of gunshot or knife wounds.1
Similarly, the NHS Confidentiality Code of Practice states that “serious harm to the security of the state or to public order and crimes that involve substantial financial gain or loss” will general fall into the category of serious crime.2 Does this cover passing on information about a patient’s involvement in public disorder?
It does if it threatens the public interest, but the ethical shades of grey become even more blurred in instances where the crime cannot immediately be classed as serious. The wider context is important, as sometimes crimes may be considered as serious where there is a prolonged period of incidents, even though they might not be serious on their own.3
For example, a patient presents at the emergency department (ED) with unexplained cuts to their hands and wrists. It later emerges that these injuries were sustained whilst looting a sports shop for a pair of trainers. This is, of course, a crime, but is it in the public interest to disclose this confidential patient information? How far should doctors make morally charged decisions about how serious a crime has to be before it is reported?
Primary duty is to your patients
Disclosure of a patient’s personal information may be in the public interest, if it is likely to protect individuals or society
MPS Senior Medicolegal Adviser Dr Su Jones says: “It is important to remember that a doctor’s primary duty is to their patient. It is helpful to document any decisions and discussions that have taken place. You should document your disclosure.”
She adds: “If you are unsure whether or not to share information, seek advice from an experienced colleague, or call MPS for advice.”
Breaking confidentiality in instances where there is not a clear and justified public interest can erode the confidential nature of the doctor–patient relationship. Without confidentiality, patients may be reluctant to seek treatment or disclose their full history or nature of their injuries, which may compromise their health and erode patients’ confidence in the profession.
In addition, it is important to consider the extent of information which is to be disclosed – disclosing demographic data or the fact that someone attended a clinic may be easier to justify than revealing explicit clinical details.4
Safeguarding society
If you are unsure whether or not to share information, seek advice from an experienced colleague, or call MPS for advice
Legislation provides for the obligatory disclosure of information under certain acts, for example the Criminal Appeal Act 1995, Prevention of Terrorism (Temporary Provisions Act) 1989, Public Health (Control of Disease) Act 1984 and the Road Traffic Act 1988.5 As healthcare professionals interact with the public on a daily basis, they play a vital role in safeguarding; for example, in reporting child protection issues, spotting domestic abuse, or even spotting the potential for terrorist activity.
The government’s Prevention of Terrorism Programme, drawn up to help combat home-grown terrorism after the 7/7 London bombings, places particular emphasis on healthcare professionals’ involvement in reporting instances where they suspect a patient may have been drawn into extremist activity.
The strategy states: “Healthcare professionals may meet and treat those who are vulnerable to radicalisation.”6 Those with learning difficulties or mental health problems are, it is argued, more easily drawn into terrorism. For example, Nicky Reilly, who has Asperger’s syndrome, was convicted of trying to blow up a shopping centre in Exeter.
It is, however, extremely difficult to generalise or pigeonhole. Such monitoring could lead to heightened suspicion for no justifiable reason, leading to a loss of patients’ confidence in doctors, rather than any significantly improved detection of terrorists.
The strategy goes on to explain: “The key challenge for the healthcare sector is to ensure that, where there are signs that someone has been or is being drawn into terrorism, the healthcare worker can interpret these signs correctly, is aware of the support which is available and is confident in referring the person for further support.”7
Looking to the future?
Healthcare professionals may meet and treat those who are vulnerable to radicalisation
Can doctors really look into the future and say how someone might behave? In the UK, GPs receive written notification from the police whenever a patient applies for a licence, or applies for a renewal of a licence for a firearm or shotgun, to bring to their attention any medical condition that may affect shotgun or firearm ownership. However, it would be impossible for doctors to predict whether patients who own firearms would harm others in the future.
A BMA spokeswoman said: “If a doctor did have concerns about a patient who has a firearm, then of course they should raise this within the appropriate channels.”
It is up to a doctor to use the information they have been given to make a professional judgment on the situation, and whether it is necessary to disclose information within the public interest.
“Recently, a patient told one of my juniors that they had a shotgun at home. The patient had attended with depression and had expressed suicidal intent,” says Dr Jonathan Jones, Emergency Medicine Consultant at Leeds General Infirmary. “I actually discussed the situation with a mediocolegal adviser at MPS. Following that discussion, I spoke to the patient and clarified the story – they sometimes borrowed a shotgun their uncle kept in a locked gun cupboard and they had some shotgun cartridges at home. I felt that the situation was low risk and we did not inform the police.”
Making moral judgments
It is up to a doctor to use the information they have been given to make a professional judgment
Dr Jonathan Jones adds: “As EM consultants we are expected to make moral judgments on the severity of a crime and when to disclose – and this is tricky. Not so long ago, a nurse found that a patient had a carrier bag full of marijuana plants. The patient had attended with mental health problems and claimed they had found it in a bus stop. The nurse contacted our pharmacist, as is policy when it comes to disposing of illicit substances.
Because of the volume of material, she could not use the normal processes for disposing of the material and so the police were called. The police were keen to have the patient’s details. I felt that this did not constitute a serious arrestable offence – they disagreed, arguing that clearly the patient had access to marijuana being grown, which could be classed as intent to supply, meaning it was a more serious offence. I asked them to get written authority and a request for disclosure of personal data from an inspector or above, before I would then consider their request further.”
Professional and personal response
There is, perhaps, a difference between a citizen’s duty and the duty of a medical professional.
Reflect on whether the disclosure is really in the public interest to avoid a knee-jerk reaction
Dr Su Jones says: “Always ensure that you can justify your decision to break patient confidentiality. Don’t get caught up in any public frenzy; have a measured, professional response in situations such as large-scale public disorder and rioting. Reflect on whether the disclosure is really in the public interest to avoid a knee-jerk reaction.”
Whilst doctors should not turn a blind eye to petty crime, it is their professional responsibility to disclose onfidential patient information only when there is a serious threat to public safety. Doctors are highly-regarded as upstanding members of society, but ultimately their professional duty has to lie with the individual patient.
The Independent’s Health Editor Jeremy Laurance sums up the debate eloquently: “It is not the medical profession’s responsibility to maintain law and order – its duty is to provide care to those who need it, non-judgmentally, without fear or favour. If doctors lose sight of that, we are doomed.”8