Key Knowledge Confidentiality Year 4 Medical Ethics and Law Thread Course The Ethox Centre, University of Oxford

Main legal aspects of confidentiality 1.There is a general legal obligation on doctors to keep confidential medical information that is disclosed to them by patients 2.This obligation is not absolute – There are situations where the law obliges doctors to breach confidentiality (under the requirements of various statutes – see Background Reading for further information) – There are situations where the law permits doctors to breach confidentiality (under the requirements of the Human Rights Act 1998 and common law principles) – In both situations, it is important that a doctor breaches confidentiality to the relevant and appropriate person(s) or authority(-ies) only 3.The general legal obligation for doctors to maintain confidentiality is a public not a private interest

Main legal aspects of confidentiality 4.The issue of when it is lawful, and when it unlawful, to breach confidentiality is often a question of balancing public interests (the public interest in maintaining trust in the medical profession vs. the public interest in preventing individuals from coming to harm) 5.No breach of confidentiality has taken place if: – A patient has given consent for the information to be disclosed, or – The patient cannot be identified from the information that is disclosed 6.Sharing information about patients with other members of the clinical team, and for the purpose of determining the best course of treatment, is not generally viewed as a breach of confidentiality (and is not the kind of thing that would require the explicit consent of patients) 7.A doctor must take reasonable precautions to prevent confidential information from failing into the wrong hands – Locking information in a filing cabinet or using secure databases – Using initials on whiteboards or other noteboards in public spaces in a hospital – Sharing information with colleagues in private spaces on the wards

Confidentiality and the GMC The key document is Confidentiality (GMC, 2009) – supplemented by additional guidance on driving, disclosing medical records, reporting gunshot and knife wounds, disclosing information for education or training, and disclosing information about serious communicable diseases The law looks to the GMC standards to apply its general requirements in medical settings Duties of confidentiality continue after a patient dies, but whether information about the patient can be disclosed will depend on the cirumstances

Confidentiality and the GMC Disclosure in the public interest – There is a clear public good in having a confidential medical service – However, there is also a public interest in disclosing medical information when doing so can protect individuals or society from serious harms, such as serious communicable diseases or serious crimes, or to enable medical research, education or other secondary uses of information that will benefit society over time – Before disclosing information in the public interest, you must be satisfied that identifiable information is necessary, or that it is not reasonably practicable to anonymise or code it. In such circumstances you should attempt to obtain the patient’s consent to share this information, unless it is impracticable to do so

Confidentiality and the GMC Disclosure to protect others – Disclosure of medical information without consent may be justified in the public interest when there is a risk of death or serious harm. – Where possible, you should try to obtain consent from the patient to disclose the information before making a disclosure without consent – You should inform the patient before disclosure that you intend to disclose the information (unless it is impracticable or unsafe to do so)

Confidentiality and the GMC Disclosure to protect the patient – It is good practice to encourage patients to consent to disclosing information when you consider it necessary to do so to protect them from harm. – You should respect a competent adult patient’s refusal to consent to disclosure, even if this decision leaves the patient (but no-one else) at risk of death or serious harm – The only exception to this rule is if statutory provisions obliging you to disclose information apply – You should do your best to provide information and support to the patient in order to make decisions in their own interests (e.g. by arranging contact with agencies who provide support to victims of domestic violence)

Confidentiality and the GMC The disclosure of genetic information within families: – There is explicit acknowledgement that, in some situations, the relevance of genetic information to a patient’s family members may be capable of meeting the public interest test for disclosure