Confidentiality - Disclosures without consent

Summary

Certain circumstances can mean you are obliged to disclose information about a patient, even if you do not have their consent; under other circumstances, disclosure may be justifiable. This factsheet gives you further information about these circumstances.

An obligation to disclose

Under certain circumstances, the disclosure of medical information is required by law. In these situations, consent from the patient is not required. You should not disclose any more information than is absolutely necessary. 

The patient should be made aware of the disclosure, and informed about why you are disclosing the information, 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 disclosure of information you make.

You should not disclose information about a third party (who is not a healthcare professional involved in the patient’s care) that may be contained in your patient’s records, without their consent.

If you have any concerns about disclosing information, you should contact MPS.

Disclosures required by statute

Legislation provides for the obligatory disclosure of information, under particular circumstances Examples include 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. For a comprehensive list of legislation requiring disclosure, and the circumstances in which disclosure is required, you should refer to the FAQ booklet that accompanies the GMC’s guidance on confidentiality. Note, in particular, the following obligations:

NHS counterfraud investigations
Under the NHS Act 2006, investigations into fraud in the NHS may require access to confidential patient information. The investigators have the power to require the disclosure of the relevant parts of a patient’s record, should they believe that this is important to the investigation.

Disclosures to the GMC – investigation of a doctor’s fitness to practise
Under the Medical Act 1983, the GMC has the power to request access to a patient’s medical records for the purposes of an investigation into a doctor’s fitness to practise.  Unless you are the doctor under investigation, you are obliged to comply with that request. 
If you are uncertain whether you may be under a statutory obligation to disclose confidential information, you should contact MPS.

Coroners' investigations

In certain circumstances, the coroner (or procurator fiscal in Scotland) is required to investigate the circumstances of a death –  for example, if the death occurred in a violent manner or in custody (for further information, see the MPS factsheet Reporting Deaths to the Coroner). You are obliged to disclose any information you may hold about the deceased that is likely to be relevant to the investigation.

Courts or litigation

A judge or presiding officer of the court can require you to disclose patient information. You should highlight the lack of patient consent and only disclose the information relevant to the investigation. You should object to the disclosure if you believe that it is not relevant.

Justifiable disclosures in the public interest

The disclosure of information about a patient without their express consent may be justifiable, if the public interest in disclosing the information outweighs the patient’s interests in keeping it confidential.

In all cases, you must decide whether or not the possible harm caused to the patient – and to your relationship with the patient – by disclosing this information will outweigh the benefits resulting from the disclosure.

Before disclosing, you should satisfy yourself that the information cannot be anonymised and that you are only disclosing information relevant to the purpose of the disclosure.

You should attempt to seek the patient’s consent, but there are certain circumstances when this will not be possible –  for example, if the patient lacks capacity, you are not able to trace the patient, obtaining consent undermines the purposes for which the disclosure was being made, or the disclosure must be made quickly – such as cases of detection or control of communicable diseases.

It is important to document any decision you make and your reasons for disclosing the information.

Disclosure to protect the patient or others from harm

The disclosure of a patient’s personal information may be in the public interest, if it is likely to assist in the prevention of a serious and imminent threat to public health or national security, or reduce the risk of death or serious harm to the patient or a third party. This includes the prevention, detection and prosecution of a serious crime.  The risk of harm must, in your opinion, outweigh the privacy interests of your patient.

If it has not been possible to seek the patient’s consent to the disclosure, you need to judge whether or not the benefits to the patient, or to third parties, of disclosing the information outweigh the patient’s interests in keeping this information confidential.

If the patient has refused consent to the disclosure, you can only consider whether or not to disclose the information, if it is likely to assist with the prevention of serious harm to third parties. In adults you cannot override a competent refusal to disclose if the only purpose of the disclosure is to prevent serious harm to the patient.

The ultimate decision about whether or not a disclosure was made in the public interest is determined by the courts. If you do disclose the information, and are required by the GMC to justify your decision, you need to ensure that your reasons are clearly documented.

However, if the purpose of the disclosure is for the protection of an incompetent patient from serious harm, there is an expectation that you will disclose the relevant confidential information – and you may be required to justify why you did not do so.