Medicolegal - When you may break patient confidentiality

Dr John Holden of the MDU, explains some circumstances of when a GP may need to disclose patient information.

Most doctors recognise that they have an ethical and legal obligation to protect patient information from improper disclosure and take all reasonable steps to ensure that consultations remain private.

However, there are circumstances where a doctor may be asked to disclose information about a patient or allow a third party access to a patient's medical records.

These fictional examples (based on cases from the MDU's files) illustrate some of the typical dilemmas. Doctors with specific concerns are advised to contact their medical defence organisation for advice.

Q: Following a hit and run accident, the police have contacted me after a witness saw a car matching the description in the surgery car park. The police have asked if I treated anyone with injuries consistent with a car accident at that time. I saw a young man with glass wounds. Should I give the police the details?

Although the fact that someone is your patient is normally confidential, under the Road Traffic Act 1988 a GP is obliged, if asked, to give police any information in their possession which may lead to the identification of a driver who is alleged to be guilty of an offence under the Act.

You are obliged to give the police the patient's name and address, but you should not disclose any clinical information without your patient's written consent.

Q: I have been approached by an insurance company who has asked me to provide a medical report. Do I need to get the patient's consent myself?

The GMC states that a doctor who undertakes a medical examination or writes a report on a patient for an insurance company must obtain the patient's consent. In many cases patients sign a consent form, which the insurer then passes to the doctor.

A doctor must ensure the patient understands the reason for the disclosure, the extent of the information to be disclosed and the fact that relevant information cannot be omitted.

The Association of British Insurers advises GPs to use the General Practitioner's Report Form for insurers, rather than printouts of patient records, because of the risk that irrelevant information may be released for which the patient has not given consent.

If the patient exercises their right to see the report under the Access to Medical Reports Act 1988, you may not pass it to the insurance company until the patient has seen it.

The GMC says that you should show the patient the report, or give a copy, even if the law does not require you to. If the patient withholds consent to disclose the report, you should respect their wishes.

Q: I have been contacted by the father of a 14-year-old girl who is a patient at my practice. He is divorced from the patient's mother who has been told by her daughter that she is pregnant. He is demanding to know the truth about her condition.

Provided you judge the patient is mature enough to understand the nature, purpose, benefits and risks of her condition and any proposed treatment, she has a right to confidentiality and her consent should be sought before such information is disclosed.

Releasing information without consent may be considered justifiable in certain circumstances, for example where failure to do so may expose the patient to risk of death or serious harm such as sexual abuse.

As with an adult, you should generally tell the child before disclosing the information.

If the patient is not competent then a person with parental responsibility must authorise disclosure on the child's behalf. A father who has been married to the mother would retain parental responsibility if divorced unless this had been removed by the courts. However, in considering disclosure to a parent, the best interests of the child are paramount.

Q: A solicitor has contacted me to request the medical record of a deceased patient to assist with a medical negligence claim his family is making against the local hospital. What should I do?

The obligation to respect a patient's right to confidentiality extends beyond death. Where no express wishes have been made while the patient was alive, information can be disclosed with the authority of an executor of the patient's will or administrator of their estate.

Anyone who may have a claim arising out of a patient's death may be entitled to see the patient's clinical records under the Access to Health Records Act 1990, subject to provisions that information may be withheld if it may cause serious harm to the physical or mental health of an individual, or if it relates to a third party other than a health professional.

Q: A patient has just left after a lengthy appointment. He is upset and angry because his wife wants a divorce. During the consultation he made vague threats against her. Should I tell the police about this?

The risk to the patient or others may be so serious that it outweighs the patient's rights to confidentiality. In this case, you should still seek consent to the disclosure as far as practicable.

Where a patient withholds consent, ask for the reasons and consider these carefully. The GMC says that a breach of confidentiality 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'.

You need to balance the patient's interest against the public interest in reporting a possible crime.

If this is not practical or the patient withholds consent you should disclose information promptly to the appropriate person or authority and inform the patient that you have done so, carefully recording your reasons for disclosure in the patient's records.

Dr Holden is a medicolegal adviser with the MDU

Learning points

1. Express consent is required before disclosing information about an patient, unless the law allows otherwise or it is ethically justifiable to do so without consent.

2. To give consent, the patient needs to understand to whom the information will be disclosed, precisely what information will be disclosed, the purpose of the disclosure and the consequences.

3. Competent patients, including children who are competent to make decisions, can give consent. You must only disclose information the patient has agreed can be disclosed and only to the third party that requested it.

4. GPs responsible for patient information they must make sure that it is protected from improper disclosure, including unintentional disclosure.

5. Before disclosing information you will need to consider any legal duty and GMC guidance. You should also seek expert advice from your medical defence organisation.

Reference

  • Confidentiality: Protecting and Providing Information, GMC April 2004.

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