Confidentiality: Disclosing patient information within the healthcare team

In the latest in our series on the GMC's new confidentiality guidance, MDU medico-legal adviser Dr Edward Farnan looks at how information can be shared for healthcare purposes.

There is an increasing need for healthcare practitioners to collaborate with each other to ensure that patients are receiving the correct ongoing care.

Paragraph two of the GMC's new confidentiality guidance states that ‘appropriate information-sharing is an essential part of the provision of safe and effective care. Patients may be put at risk if those who are providing their care do not have access to relevant, accurate and up-to-date information about them’.

The GMC differentiates between sharing information for a direct care and disclosures which are for secondary purposes such as clinical audit, service planning and medical research, or which are not connected to the delivery of health or social care.

Implicit and explicit consent

The GMC says you can rely on the patient’s ‘implied consent’ to share information with those ‘who provide (or support the provision of) direct care’ (paragraph 28) providing certain conditions are met.

In this instance implied consent means ‘it would be reasonable to infer that the patient agrees to the use of the information, even though this has not been directly expressed’ (paragraph 13b).

You need to make sure that:

  • You are satisfied the person with whom you are sharing the information is using it to provide or support the patient’s direct care
  • Information is readily available to patients (for example by way of posters, leaflets or practice websites, as well as face to face) explaining how their details will be used and their right to object
  • You have no reason to believe the patient has objected
  • You are satisfied the person to whom you disclose the information understands they must respect the patient’s confidentiality

However, if you ‘suspect a patient would be surprised to learn about how you are accessing or disclosing their personal information, you should ask for explicit consent’ unless this is not practicable (paragraph 29). The GMC defines explicit consent as ‘when a patient actively agrees, either orally or in writing, to the use or disclosure of information’ (paragraph 13a).

You should ensure that the information which you intend to share is relevant for the purpose (paragraph 27).

Patient objections

Sometimes, a patient may object to information being shared for their direct care. In these cases, the GMC states that in these circumstances you should not disclose information, unless this would be justified in the public interest or the patient lacks capacity and you believe disclosure is of overall benefit to them (paragraph 30).

Sometimes, independent practitioners contact the MDU because a patient doesn’t want them to write to their GP, usually because they don’t want a particular diagnosis or treatment to be documented in their NHS medical record. In this circumstance, you can explain why you feel it is necessary to share the information and the possible consequences for their future care if their GP is unaware of their full medical history. The GMC also states that ‘you should also consider with the patient whether any compromise can be reached’ (paragraph 31).

However, if you cannot persuade the patient, it would be difficult to justify sharing the information and you may be unable to share responsibility for their ongoing care with their GP. The MDU advises doctors to record this discussion in their notes and provide the patient with written information in case they change their mind. 

On the other hand, if a patient objects to you sharing information which you believe is essential to provide safe care, the GMC says ‘you should explain that you cannot refer [the patient] or otherwise arrange for their treatment without also disclosing that information’ (paragraph 31).

Patients without capacity

If a patient lacks the capacity to consent to a particular disclosure then you can usually share relevant information with others providing their care, as long as it is of overall benefit to the patient.

The GMC says that when deciding whether to disclose personal information, you must make the patient’s care your first concern, respect their dignity and privacy, and support their involvement in decision-making as far as possible. You must also consider:

  • Whether the decision could reasonably wait (if their loss of capacity is temporary)
  • Evidence of the patient’s previously expressed wishes
  • The views of anyone the patient has asked you to consult or who has legal authority
  • The views of anyone close to the patient
  • What you know of the patient’s wishes, feelings, beliefs and values (paragraphs 44-45)

In a medical emergency, you can pass on relevant information to those who are treating the patient but if the patient regains the capacity to understand, ‘you should inform them how their personal information was disclosed if it was in a way they would not reasonably expect’ (paragraphs 32-33).

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