Medico-legal - Disclosing confidential information

Medico-legal adviser Dr Nick Clements explains how to act when your duties of care conflict.

The patient may consent to you disclosing the information once all the issues have been disclosed
The patient may consent to you disclosing the information once all the issues have been disclosed

Case study
You have just been informed that one of your patients is HIV-positive. He is determined not to tell his partner and requests that you do not tell her. His partner is a long-standing patient of yours. What are your obligations to both patients and what should you do?

This scenario sets two fundamental principles at the heart of modern medical professionalism - the duty of care the doctor owes to his patients and medical confidentiality - on a potential collision course. However the matter is resolved, it will be difficult for both doctor and patients.

Duty of care
You owe both patients a duty of care. For the patient in front of you, this is usually straightforward, and something we are all familiar with. However, here you have important information about a second patient - information they are unaware of, but potentially of vital importance to them and their health.

In other circumstances, for example, exposure to a contaminated blood product, your duty would be to inform the patient of the exposure and to discuss the next steps with them.

This would include the potential risks, the pros and cons of testing, treatment options, the possible impact, the consequences for them, and so on.

Here, however, no such discussion can take place without disclosure (directly or indirectly) of confidential and extremely sensitive medical details of the HIV-positive patient.

All doctors understand the importance of medical confidentiality and that it lies at the heart of the doctor-patient relationship. Normally we would all agree that confidential information cannot be disclosed to a third party without a patient's consent. Although the HIV positive patient may have a moral duty to inform his partner, or to consent to her being informed, he has requested that the information be withheld, which puts you in a difficult position.

It is important to be aware that where there is an apparent conflict of duties and responsibilities, most duties are not absolute, but qualified.

There are a number of circumstances where the duty of confidentiality may be overridden. For example, there are a number of legal provisions that require patient information to be disclosed, regardless of consent.

These include reporting specified communicable diseases, disclosure of information under the Abortion Act and disclosure in accordance with a Court Order.

Some duties, including the duty of confidentiality, can be qualified by another duty. This happens where the second duty is sufficiently strong that it outweighs the first.

In confidentiality cases, the second duty is nearly always the duty to disclose in the public interest. This can be difficult to assess, but fortunately the courts have considered the matter in a number of cases, and the GMC publishes excellent guidance on how doctors should approach these issues.

In the public interest
Personal information may be disclosed in the public interest without the patient's consent and in exceptional cases where patients have withheld consent, where the benefits of the disclosure to an individual or to society outweigh the public and the patient's interest in keeping the information confidential.

In all cases where you consider disclosing information without consent from a patient, you must weigh the possible harm, both to the patient and to the trust between doctors and patients, against the benefits that are likely to arise from the release of information.

The GMC says that disclosure of personal information without consent may be justified in the public interest, where failure to do so may expose the patient or others to risk of death or serious harm. Where the patient or others are exposed to a risk so serious that it outweighs the patient's privacy interest, you should seek consent to disclosure where practicable.

Disclosing information
If it is not practicable to seek consent, you should disclose information promptly to an appropriate person or authority. You should generally inform the patient before disclosing the information.

If you seek consent and the patient withholds it you should consider the reasons for this (if any are provided). If you remain of the view that disclosure is necessary, you should disclose information promptly to an appropriate person or authority.

Such situations arise where a disclosure may assist in the prevention, detection or prosecution of a serious crime, especially crimes against the person, such as abuse of children.

In this case the first step will be to discuss the issues carefully with the patient. It may be that once he has had the opportunity to consider all the issues, he will change his mind about disclosing the information.

If he continues to withhold consent to disclose then you will need to weigh up matters as suggested by the GMC. In this case there is a clear risk of serious harm (or even death) to his partner, so appropriate disclosure would be justified.

If the patient continues to withhold consent you will need to explain to him that you have a duty to his partner, which will make disclosure necessary.

However, the information you will need to pass to the partner is the minimum necessary - in this case the risk of HIV exposure and the steps that need to be taken, but no more.

Keeping records
The discussions with the patient and his partner are bound to be difficult. Making a careful record of what is discussed, and the nature and extent of any necessary disclosure of confidential information, is essential.

Whenever a decision is made to disclose information in circumstances like this, it is a good idea to record your reasoning.

Although most such scenarios are resolved satisfactorily, if a patient does complain about a breach of confidentiality, good notes and documented reasoning will show that you have followed GMC advice.

Always remember that your medical defence organisation is available to advise on cases.

  • Dr Clements is head of medical services for the Medical Protection Society in Leeds.
  • 1 December 2009 is World Aids Day www.worldaidsday.org

LEARNING POINTS

1. You have a duty of care to all of your patients.

2. The GMC has published guidance on what to do when duties conflict.

3. Personal information may be disclosed in the public interest without the patient's consent in certain circumstances.

4. Record what is discussed and the nature and extent of any necessary disclosure of confidential information.

RESOURCES

GMC. Confidentiality, guidance for doctors. London, GMC, 2009.

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