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Breaching confidentiality: can doctors report a crime?

Post date: 02/08/2022 | Time to read article: 4 mins

The information within this article was correct at the time of publishing. Last updated 21/11/2022


Dr Emma Green, medicolegal consultant at Medical Protection, recalls a harrowing experience encountering a violent patient and considers the impact on confidentiality when reporting criminal behaviour or assault. 


I can still remember the day in question like it was yesterday although it was now over six years ago. It was Bonfire Night and I was about five months pregnant. I had been in teaching for the afternoon and had driven to start my late shift  as always, hungry, tired and overwhelmed by the number of ambulances queued up outside A&E. I was an Emergency Medicine trainee and was one of two doctors on the registrar rota covering the evening shift.

The patient in question was well known to the department, often attending intoxicated and in the presence of police. The night in question he was alone and I decided to see him in the mental health room in the presence of a nurse chaperone. He was drunk and had been brought in by ambulance due to public concern. I advised the patient that I was pregnant as I was worried that he had previously been violent to staff. I had just finished my examination when suddenly I felt a searing pain in my right hand, I grabbed it away and shouted for help. It was then I realised that the patient had stabbed me in the hand with a dart
.”

This was a true event experienced by myself and something which has never left me.

Stories such as these used to be rare, but are becoming increasingly common in the health sector. In August 2021 Unison1 reported that violent assaults against NHS staff had reached around 75000 people each year. The 2021 staff survey reported by NHS England2 stated that 14.3% of NHS staff had experienced at least one incident of physical violence in the last 12 months, with the impact of this being that 46.8% of staff reporting feeling unwell as a result of violent attacks.

I was lucky, the physical injury was relatively minor but would agree that the mental impact of this encounter was far greater than I had realised.  Other professionals may be more seriously harmed in the course of their work, but many doctors report lower levels of criminal or violent activity from patients and often ask whether they can breach confidentiality and report these issues to the police. Sometimes there is no physical injury, doctors can be victims of theft, verbal abuse and other crime which may cause concern as to whether it is sufficient to breach confidentiality and report to the police. Racial abuse is also a common concern among doctors and whether they can report this or are required to continue seeing patients when they have been a victim.


Confidentiality

GMC guidance on confidentiality3 is clear that confidentiality is not absolute and patients should be aware that there are circumstances where doctors may need to breach confidentiality.  Many zero tolerance protocols advise patients that information may be passed to the police  or that their behaviour could risk prosecution. Therefore it would be implied that patients should be aware that criminal behaviour could result in their information being passed to the police. However this raises the question of where doctors stand if they are victims of a crime and wish to report a patient to the police.

The NHS constitution for England4 sets out the rights offered to patients but also their responsibilities. The constitution is clear that violence or causing a nuisance / disturbance on NHS premises could result in prosecution. It also goes on to state that abusive and violent behaviour could result in refusal to NHS services.

Whilst  it is unlikely that patients would be familiar with such a document it may provide reasonable justification for subsequent action when a patient has been in breach of that contract. The GMC also suggest that; “Doctors are not expected to put up with even petty crime with no recourse to the police, and doctors may be able to justify disclosing information”5.

Breaching confidentiality needs to be considered in the context of the fundamental principle of maintaining trust between the doctor and the patient. In some circumstances, informing the police of the details of a patient who commits a crime in the context of their medical attendance, may need to be balanced against the risk of harm to the patient should the therapeutic relationship be lost.

This can make the decision of reporting a crime to the police a difficult balancing act which may need to be justified in the event of a subsequent complaint, or if the crime is not reported, a subsequent incident that arises following non-disclosure.

There are circumstances where there is a clear public interest in disclosing information about a crime, particularly where there may be risk of future harm to others. Doctors must consider  the public interest relating to serious crime. Whilst there is no definition of “serious crime” the NHS code of practice6 suggests this may include murder, manslaughter, rape or child abuse.

In circumstances where the decision is made to disclose information to the police, the information should be the minimum required and there would be few circumstances when it would be appropriate to disclose confidential medical information. Depending on the clinical setting where a crime occurs there may be implicit medical information given inadvertently, for example a crime occurring in a drug and alcohol rehabilitation centre and doctors should be mindful of this when considering disclosure.


Continuing to provide care

When considering whether the crime committed by a patient has led to a breakdown in the relationship and whether there is an ongoing professional duty to treat the patient. The GMC have provided comprehensive guidance on those circumstances where the issues may result in being unable to provide patient care7.  Reasons for ending the relationship include where a patient has been violent or threatening, or where they have stolen from an individual or the premises. 

For those in primary care, the special allocation scheme (SAS) enables practices to remove patients who have exhibited violent ore aggressive behaviour. As part of the scheme, GP practices are expected to report the behaviour to the police8.


Summary

There is no clear guidance for doctors which would fully endorse disclosure when a victim of crime,  therefore this often needs to be a judgement call.

Doctors  should evaluate the situation on a case by case basis and consider their own Trust or Practice zero tolerance policy as well as the individual circumstances of the crime committed.

If in doubt, doctors need to consider the principles of confidentiality and be able to justify their decision making. They may need to consider obtaining consent, if appropriate or advising the patient of their intent to disclose.

When in doubt doctors should seek advice from their defence organisation.


References

1Reducing violence in the NHS - UNISON National
2Violence prevention and safety - NHS England
3Confidentiality - GMC 
4The NHS constitution for England. Updated January 2021
5Reporting a crime - ethical learning material - GMC
6Department of Health: Confidentiality: NHS code of practice. Public Interest disclosures. November 2010
7Ending your professional relationship with a patient - ethical guidance - GMC
8Removing violent patients and the special allocation scheme - BMA

 

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