Confidentiality is not absolute

medical records


Lauren Wilson, lawyer at Markel Law analyses the General Medical Council's new guidance on Confidentiality and its implications for the medical profession.

Patient confidentiality has long been one of the most important considerations for practitioners in the medical profession. On 25 April 2017, the GMC released its new guidance on confidentiality: "Confidentiality: good practice in handling patient information." This replaces the 2009 guidance and provides welcome clarification to the existing principles relating to patient confidentiality and privacy. Here's what to look out for in the new guidelines:

What's new?

Generally, the principles of the current GMC guidance remain unchanged and while patients still have a right to expect that their personal information will be not be disclosed unless necessary , the 2017 guidance now clarifies:

  • The public protection responsibilities of doctors, including when to make disclosures in the public interest.
  • The importance of sharing information for direct care, recognising the multi-disciplinary and multi-agency context doctors work in.
  • The circumstances in which doctors can rely on implied consent to share patient information for direct care.
  • The significant role that those close to a patient can play in providing support and care, and the importance of acknowledging that role.

The 2017 guidance provides a framework for considering when it is possible to disclose patients' personal information, specifically:

  • Disclosures to support the direct care of an individual patient;
  • Disclosures for the protection of patients and others; and
  • Disclosures for all other purposes.

Difficult decisions

With this in mind, the GMC has now issued explanatory notes to apply the new guidance to situations which may present a greater challenge. Examples include:

Reporting concerns to the DVLA

It's important to consider the patients conditions and or treatment and whether that will affect their ability to drive safely. If a patient is deemed unfit to drive, then they first must be notified of their legal duty to alert the DVLA or DVA. However, if a situation arises in which the patient is unable to, or refuses to notify the relevant agency and continues to drive, then it may be down to the doctor to disclose the relevant information.

Disclosing information for employment or insurance purposes

If a report on a patient is necessary for insurance or employment reasons, a dual obligation may arise to both the patient and a third party (such as a patient's employer, an insurance company or an agency assessing an entitlement to benefits). The third party may request personal information about a patient, either following an examination or from existing records. If this is the case, only records relevant to the request should be presented. If a patient withdraws consent for the report to be disclosed, you must abide by their wishes unless the disclosure is required by way of law or can be justified in the public interest. If patients withdraw consent to disclose the report, or do not attend appointments, it is reasonable to tell the third party, person or organisation only that information, but nothing further. In most circumstances, the patient must be given the opportunity to review the report before sending it.

Disclosing information about serious communicable diseases

There may be instances in which it becomes necessary to disclose information about a patient in relation to a serious communicable disease which puts them or others in danger. The guide by the GMC distinguishes between disclosures that may be necessary for the safe care of the patient (for example if dangerous drug interactions are not identified), and disclosures that may be necessary to protect others from risks of infection (for example arising from needlestick or other injuries). If you disclose information about a patient's infection status, you must keep disclosures to the minimum necessary for the purpose.

Reporting gunshot and knife wounds (and other violent injury)

It's the police's responsibility to assess the risk posed by a member of the public who is armed with, and has used, a gun or knife in a violent attack. If a patient presents with a gunshot wound or a wound from a knife, blade or other sharp instrument, the police should usually be informed. It is a professional judgement whether or not to call the police, especially in circumstances where it appears the wound may be accidental, however, due to the potential immediacy of risk to others it often may be necessary. Along with avoiding the potential risk of a further attack to patients or staff, the police also require statistics on gun and knife crime to aid their own crime reduction tactics.

Disclosing information for education and training

In most instances, anonymised information can be used for training and educational purposes. If this is impractical, then a patient should be asked for their explicit consent before disclosing it to anyone. To further learning and education of doctors in training or students, those who are part of the team providing or supporting a patient's direct care can have access to the patient's personal information, just as other team members do, unless the patient objects.

Doctors must follow all GMC guidance: serious or persistent failure to do so may put their registration at risk. LHS Solicitors can advise medical practitioners and provide support for any that come under scrutiny for their decisions.

The full guidance can be found here.