Response to GMC consultation on confidentiality: protecting and providing information

Overview

MPS welcomes the opportunity to comment on the GMC’s guidance on confidentiality. This review is timely as there have been major developments in this area, for example the use of electronic patient records, that the guidance now needs to embrace.

Specific comments

Question 1 – is maintaining confidentiality still an important professional value and a matter for the GMC to issue guidance on, or is it something that can be dealt with by contractual and legal obligations?

Confidentiality remains a vitally important professional value – it is at the core of the doctor–patient relationship. Clear, comprehensive guidance from the GMC is necessary as issues surrounding confidentiality and the disclosure of confidential information can be very complicated and all cases are different.

We do not think that the confidentiality obligations can be dealt with adequately by contractual or legal obligations and therefore guidance from the GMC is absolutely necessary. There is a rapidly expanding list of situations where breaches of confidence may be legally and contractually justified, yet they have the potential to seriously undermine the doctor–patient relationship. 

Our experience is that the interpretation of confidentiality guidance is quite variable throughout the UK and it is of particular importance that a centralised body, such as the GMC, provides generic guidance that all registered doctors should follow.

Question 2 – should the GMC be producing guidance, given that guidance is issued by a few different bodies (GMC, Department of Health, and Information Commissioner)?

Yes, it is important for the GMC to produce guidance on confidentiality as doctors look to the GMC to uphold standards of professional behaviour.

The GMC also has a unique perspective on the doctor–patient relationship and the impact of maintaining confidential records on this relationship.

Question 3 – what do you see as the most important confidentiality issues now and in the future which are relevant to doctors and the GMC?

There are four main factors that we believe will have an effect on doctor–patient confidentiality:

1. An increasing expectation that information will be shared with multiple agencies for the protection of vulnerable people.
2. The increasing use of patient information for performance monitoring.
3. The use of electronic patient records and the NHS spine.
4. The use of email as the preferred means of communication and the increasing use of mass storage devices.

Question 4 – what have been the big organisational and legal changes in relation to confidentiality since 2000, when we last substantially reviewed our guidance?

The widespread use of electronic patient records has been a significant organisational change. This has been accompanied by an increase in the demand by PCTs for performance assessment purposes – rather than strict audit – to review medical records. This has resulted in increased pressure on doctors, as they are required in such circumstances, to obtain express consent from patients.

There have also been some key legal changes since the previous guidance was published. The Mental Capacity Act 2005 came fully into force in October 2007 and it sets out guidelines for the provision of information about an incapacitated patient between healthcare professionals and other parties allowing them to make a decision, or facilitate decision making, about any aspects of the patient’s care. There is an obligation to seek the views of a wide range of people involved with the patient. This may include not only family members and close friends but also independent mental capacity advocates and deputies of the Court of Protection.

The NHS Act 2006 gives investigators of fraud in the NHS powers to access and remove patient notes.

There have also been societal changes that it is necessary to take into account. Doctors, in common with all healthcare workers, have increasingly become victims of crime when acting in their professional capacity. These assaults, or criminal damage to practice premises, do not necessarily fall within the current GMC definition of a “serious crime”. Guidance is now required on the disclosure of confidential information in such circumstances.

Question 5 – what do you think of the current form of the guidance – for example, should we be more or less specific or detailed in our advice, or about the same?

The current guidance is adequately detailed. The revised guidance will invariably be longer than the previous guidance as there are more issues to consider. It must be readable and written in a user–friendly way.

Question 6 – would a web-based resource of examples of case studies, which could be kept up to date and amended as necessary, be helpful?

A web-based resource library of case studies would be a very useful tool for doctors. It would also be helpful for those educating doctors to access and could ensure some standardisation in the way that confidentiality issues are taught.

Question 7 – are there any major omissions in the current core guidance? If so what are they?

Further to the comments above, it would be helpful for the guidance to address what a doctor should do when faced with a competent child who refuses to agree to the disclosure of their medical notes to a third party.

Question 8 – is there any text in the existing guidance which is confusing or inaccurate? (please be as specific as possible).

There are areas in the guidance where clarification would be helpful and also where there appears to be conflicting advice. 

Paragraph 19 – it would be helpful to include further information about situations in which a doctor has raised concerns about the disclosure of information to a judge.

Paragraphs 24 and 27 – In paragraph 24 and at the beginning of paragraph 27 it is clearly stated that disclosure without consent may be justified to protect the patient or another from serious harm. Further into paragraph 27 it seems to say that if consent is sought from the patient but refused then information can only be disclosed if another person, not the patient, is at risk of serious harm. On the other hand, it would seem from this paragraph that if it is not practicable to obtain the consent of the patient then it is justifiable to disclose the information to protect the patient as well as another. The initial opening statements tend to reassure doctors that they can disclose information in all cases where there is risk to the patient – doctors seem to miss the point that they cannot do so if the patient has expressly refused. 

Question 9 – can you give examples of difficult decisions doctors have to make about confidentiality and the disclosure of information?

When providing medicolegal advice to our members the disclosure of confidential information is a common theme. Below are some examples of situations in which doctors have to make difficult decisions.

Treatment of STIs

Doctors working in genito-urinary clinics are required to contact known sexual contacts of patients with sexually transmitted diseases. These doctors are unclear as to how much information regarding the identity and types of diseases that the prime contact has had should be passed on to the sexual contacts. On occasions genito-urinary doctors have been “forced” to prescribe antibiotics to sexual contacts without revealing the name of the patient in order to protect their confidentiality.

Drug addicts and public interest disclosures

GPs, in particular, telephone MPS advice lines requesting guidance on known drug addict patients who have stolen money or wallets from patients in waiting rooms. Whilst the crime of simple theft clearly does not cross the GMC’s threshold justifying a public interest disclosure, GPs are often concerned that the theft might be motivated by a desire to purchase illicit drugs, which may well lead to a risk of further harm to these drug addicts. 

HIV-positive patients and information recorded in patient notes

It is not uncommon for patients to disclose sensitive information to their doctor. For example, an HIV-positive patient requested that his HIV status was not entered into his notes, even though he was being treated for his condition. The doctor involved was unsure of how to respond.

Request for referral letter to Social Services in cases of suspected abuse or neglect

A doctor treating an incapacitated child patient decides that the child may be the victim of neglect or abuse and refers the child to Social Services for further investigation. It is not uncommon for the angry parents to request a copy of the letter from the GP to Social Services. This letter will clearly include a reference to one or other of the parents and the concerns that the doctor has of their care.

Threat of violence from a patient

Occasionally a doctor may have fears for his/her personal safety because of a threat of violence from a patient. A doctor may request a police officer, or suitable security officer, to be present during a consultation. The patients often object to a lay third party being present and hearing a sensitive medical consultation.  However, the doctor needs to know whether or not she is justified in having adequate security if she has valid concerns about her own safety.

Work experience students

It is not uncommon for doctors to receive requests from older school children who are interested in pursuing a career in medicine.  Is it acceptable for school children to be present as an observer in, for example, a GP’s surgery, provided the patient has consented?

Police investigation

During the investigation into a murder, if the police have identified a suspect, they will often ask for a copy of the alleged perpetrator’s medical records. The policy will often say that information within the medical records “might be helpful” into the investigation of this serious crime.

Question 10 – how could we make our confidentiality guidance more useful and accessible to patients and the public?

The guidance may be made more accessible to patients and the public by producing summary versions giving the key issues that are relevant. It would also be useful to include examples of situations in which confidential information could be disclosed and those circumstances where it cannot be disclosed without appropriate consent.It is important to ensure that the guidance is made available to those organisations that regularly put pressure on doctors to disclose information without their patient’s consent (eg, PCTs, the police, employers or insurance companies).

Question 11 – how could we make our confidentiality guidance more useful to doctors?

Web-based case scenarios that are regularly updated would be particularly helpful.

Confidentiality is one issue, more than others where it would be helpful for the GMC to be able to provide “instant” or near instant advice. The guidance will not cover every possible scenario and, in many cases, the question of whether a breach is justifiable or not is a difficult one to assess. A doctor is far more likely to be referred to the GMC for a breach of confidentiality than have legal action taken against him. It would be helpful for the doctor to have the GMC’s reassurance he or she would not be in breach of his or her professional duties by disclosing information in a particular case.