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Confidentiality

Post date: 07/12/2018 | Time to read article: 10 mins

The information within this article was correct at the time of publishing. Last updated 10/12/2018

General principles

Confidentiality is at the centre of maintaining trust between patients and doctors. As a doctor, you have access to sensitive personal information about patients and you have a legal and ethical duty to keep this information confidential, unless the patient consents to the disclosure, disclosure is required by law or is necessary in the public interest. 

Data relating to an identifiable individual should be held securely, in accordance with the Data Protection Act 2018 (see our factsheet on the General Data Protection Regulations) and GMC guidance on confidentiality. The information held should be accurate, relevant and up-to-date, and kept only as long as necessary for the purpose of providing healthcare.
You should take care to avoid unintentional disclosure – for example, by ensuring that any consultations with patients cannot be overheard. Your duty of confidentiality relates to all information you hold about your patients, including demographic data, the dates and times of any appointments your patients may have made, and the fact that an individual may be a patient of yours or registered with your practice.

Consent to disclosure

Before disclosing any information about a patient to a third party, you should seek the patient’s consent to the disclosure. See our factsheet [insert link] on consent for more detail.

Disclosure required by law

Legislation provides for the obligatory disclosure of information, under particular circumstances. Examples include the Criminal Appeal Act 1995, Terrorism Prevention and Investigation Measures Act 2011, 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 Legal Annex to the GMC’s guidance on Confidentiality. 

Coroners’ investigations

In certain circumstances, the coroner is required to investigate the circumstances of a death – for example, if the death occurred in a violent manner or in custody. 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

Both civil and criminal courts have powers to order the disclosure of information in various circumstances. A judge or presiding officer of the court can require you to disclose patient information. You should highlight the lack of patient consent if the judge or the presiding officer if attempts are made to compel you to disclose what appear to you to be irrelevant matters, eg, matters relating to relatives or partners of the patient who are not party to the proceedings. The patient whose information is sought should be told about the order, unless that is not practicable or would undermine the purpose for which disclosure is sought.

Reporting patients to the DVLA

The Driver and Vehicle and Licensing Agency (DVLA) is legally responsible for deciding if a person is medically unfit to drive, and needs to know if a driver has a condition, or is undergoing treatment that may now, or in their future, affect their safety as a driver. The driver is legally responsible for informing the DVLA about such a condition or treatment. If a patient refuses to accept the diagnosis or will not inform the DVLA, you should speak to them, and if they continue to drive against your advice you should contact the DVLA and disclose any relevant information. You should tell the patient that you intend to make this disclosure and inform them in writing once you have done so.

There is also helpful guidance from the GMC.

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 the overall trust between doctors and patients – by disclosing this information will outweigh the benefits resulting from the disclosure.

You should try to ensure that the information is anonymised, if practicable, and that you are only disclosing information relevant to the purpose of the disclosure. Only in exceptional circumstances should non-anonymised data be disclosed.

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 protect individuals or society from risks of serious harm, such as serious communicable diseases or serious crime, to reduce the risk of death or serious harm to the patient or a third party, or as a result of gunshot or knife wounds.

If it has not been possible to seek the patient’s consent, you may disclose personal information without consent if the benefits to an individual or to society of the disclosure outweigh both the public and patient’s interest in keeping the information confidential.
If the patient has refused consent to the disclosure, you should consider any reasons provided by the patient. If you still consider that disclosure is necessary to protect a third party from death or serious harm, you should disclose information promptly to the appropriate person or authority.

Communicable diseases

If a patient refuses to allow you to inform someone outside the healthcare team of their infection status, you must respect their wishes unless you consider that failure to disclose the information will put healthcare workers or other patients at risk of infection.

You should pass information about serious communicable diseases to the relevant authorities for communicable disease control and surveillance, using anonymised information if practicable.

Refer to GMC guidance for more detail.

Reporting gunshot and knife wounds

The GMC states that:
  • You should inform the police quickly whenever a person arrives with a gunshot wound or an injury from an attack with a knife, blade or sharp instrument (unless the knife or blade injury is accidental, or a result of self-harm, in which case the police should not usually be informed). If you are unsure about the cause of the injury, the GMC advises that you should consult an experienced colleague, if possible.
  • The police are responsible for assessing the risk posed by those who are armed with, or have used, a gun or knife in a violent attack.
Personal information, such as a patient's name and address, should not usually be disclosed in the initial contact with the police. You should make a professional judgement about whether disclosure of personal information about a patient, including their identity, is justified in the public interest.

You can also refer to GMC guidance for more information. 

Children and young people under 18 years

The Information Commissioner’s Office (ICO) is responsible for governing data protection compliance. ICO advice states that a competent child has the right to make their own application for disclosure under the DPA, and accordingly any application by a parent (or any other party) at this point, can only be with the child’s consent. See our factsheet [insert link] on consent for more details.

In Scotland

For children whose births were registered from 4 May 2006 in Scotland, the father has parental responsibility if he is named on the child’s birth certificate. There are also other circumstances in which fathers may gain parental responsibility – for full details see the 
factsheet [insert link] on parental responsibility. Any disclosure must normally be in the child’s best interests even where authorised by parental consent.

Patients lacking capacity
Under the Mental Capacity Act 2005, adults are assumed to have capacity unless they have an impairment affecting their mind (eg dementia), which means they are unable to make a specific decision at a particular time. See our factsheet [insert link] on mental capacity for more details.

In Scotland

Under the Adults with Incapacity (Scotland) Act 2000, adults, (those over 16) are assumed to have capacity unless they have an impairment affecting their mind (eg dementia), which means they are unable to make a specific decision at a particular time. There is also a requirement to ensure all practical steps have been taken to help the individual make a decision. If a patient lacks capacity, you should act in their best interests when deciding whether to disclose the information.

The Adults with Incapacity Act sets out in law a range of options to help people aged 16 or over who lack the capacity to make some or all of the decisions for themselves. It allows other people to make decisions on their behalf. If the patient has made a lasting power of attorney which covers personal welfare, the attorney can take the decision about disclosure on behalf of the patient and should be consulted.

After a patient has died

Your duty of confidentiality to your patient remains after death. In some situations, such as a complaint arising after a patient’s death, you should discuss relevant information with the family, especially if the patient was a child. If you reasonably believe that the patient wished that specific information should remain confidential after their death, or if the patient has asked, you should usually respect that wish.

The “personal representative” of the patient (usually an executor of the will, or an administrator if there is no will) can apply for access to the relevant part of a patient’s medical records (excepting harmful or third party information), as can someone who has a claim arising out of the patient’s death (eg for a life assurance claim or a claim in negligence). In Northern Ireland, under the Access to Health Records (Northern Ireland) Order 1993, the personal representative of the deceased and people who may have a claim arising from the patient’s death may be permitted access to the records. Disclosure should be limited to that which is relevant to the claim in question.

In respect of disclosure potentially associated with assisted suicide (eg to Dignitas), specific advice should be sought from Medical Protection.

Social media
 
In its explanatory guidance Doctors’ use of social media, the GMC says: “Many doctors use professional social media sites that are not accessible to the public. Such sites can be useful places to find advice about current practice in specific circumstances. However, you must still be careful not to share identifiable information about patients. You must not use publicly accessible social media to discuss individual patients or their care with those patients or anyone else.”

Access to medical reports

Doctors may, on occasion, receive a request from a patient’s employer for a medical report to be delivered directly to the HR department, without the patient seeing it. However, before any medical report can be provided, you must be satisfied that the patient has given valid consent to the release of the information.

It is the duty of the person or organisation requesting the report to obtain consent from the patient, and this consent should be in writing. You should be satisfied that the patient has sufficient information about the scope, purpose and likely consequences of the disclosure, and the fact that relevant information cannot be concealed or withheld. 

The Access to Medical Reports Act (1988) states that patients should be offered a copy of their medical report and the opportunity to review it prior to submission to an organisation that has requested it, eg their employer or insurance company.

Patients have the right to signal any disagreement with the content of the report. For reports covered by the Access to Medical Reports Act, this should be done in writing. Patients can append their disagreement to the report, or withdraw their consent for the release of the information.

If you agree that the information is wrong, you can amend the report. If the patient refuses consent, information can still be disclosed if required by law, or if it is in the public interest.
If you agree that the information is wrong, you can amend the report. If the patient refuses consent, information can still be disclosed if required by law, or if it is in the public interest.

In Northern Ireland

The Access to Personal Files and Medical Reports (Northern Ireland) Order 1991 (‘the Order’) states that patients have a right to access a copy of their medical report relating to them, in circumstances where the report is to be, or has been, supplied by a medical practitioner for employment or insurance purposes.
Under the Order, if a patient expresses a wish to see a report before it is submitted, they must arrange to do this within a 21-day period. The report should not be sent to the organisation concerned until the patient has consented to its disclosure. Whilst the Order states that you should keep any report for at least six months (during which time patients have the right to see it), Medical Protection would advise you to retain the report and permit access in the same way as you would with records relating to clinical treatment.

Audio and visual recordings of patients

Making and using audio and visual recordings of patients can benefit medical training, research and treatment. However, it poses risks for doctors regarding consent and confidentiality. In addition, all recordings from which living individuals can be identified constitute personal data and are subject to the provisions of the Data Protection Act.

The GMC’s guidance Making and Using Visual and Audio Recordings of Patients applies to originals and copies of photographs, visual and audio recordings of patients made with the use of any type of recording device (including mobile phones) and used in any circumstances, within or outside the UK, where doctors are working in a professional capacity – this does not include original pathology slides containing human tissue.

Specific consent is required to make a recording that forms part of the investigation or treatment of a patient or contributes to their care, except:
  • Images of internal organs or structures
  • Images of pathology slides
  • Laparoscopic and endoscopic images
  • Recordings of organ functions
  • Ultrasound images and X-rays
  • Where consent to make the recording will be inherent in the consent given for the treatment or procedure.
Wherever practicable, explain that such recordings could be used in an anonymised form for secondary purposes.

Other recordings

Such recordings should only be undertaken where there is no other way of obtaining information which is necessary to investigate or prosecute a serious crime, or to protect someone from serious harm, eg suspected child abuse. Relevant authorisation must be obtained in accordance with the legislation.

Telephone calls from patients to healthcare organisations may be recorded for legitimate reasons, eg for medicolegal purposes, staff training and audit, provided all reasonable steps have been taken to inform callers. Secret recordings are not permitted.

CCTV recordings of public areas in hospitals and surgeries are subject to the provisions of the Data Protection Act. The Information Commissioner’s Office CCTV Code of Practice should also be adhered to.

Safeguarding children and young people

The GMC’s Protecting children and young people: the responsibilities of all doctors sets out what you should do if you are concerned that a child or young person is at risk of, or is suffering, abuse or neglect:
  • Promptly tell an appropriate agency. This may be the local authority children’s services, the NSPCC or the police.
  • Provide the identities of the child or young person, their parents and anyone who may pose a risk to them.
  • Provide any information related to your concerns – your reasons, information about the child or young person’s health, and any relevant information about their parents or carers.
You should ask for consent before sharing confidential information, unless by doing so, or by delaying information being shared, you will increase the risk of harm to the child or young person. Personal information may be disclosed without consent if it is in the public interest, eg is likely to reduce the risk of death or serious harm to the patient or a third party.
 

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