When is the right time to question a medical decision?
On 22 December 2014, a fatal bin lorry crash occurred in Glasgow killing six people and injuring around 15 others. It later transpired that the driver, a council worker, had suffered blackouts for a considerable period of time, one of which occurred whilst he was driving a bus in 2010.
The Fatal Accident Inquiry (FAI) received evidence that the driver had not fully disclosed the 2010 incident to his doctors, the Driver and Vehicle Licensing Agency (DVLA), on application forms and/or medical declarations when applying for jobs.
The General Medical Council has since issued guidance stating: ‘confidentiality is not absolute’.
The duty of confidentiality to patients
All healthcare workers, including doctors, have a duty of confidentiality to their patients. In short, this means that information received about patients by a clinician should not be shared. This relationship between patient and clinician is an important once as it encourages patients to seek treatment in circumstances which may be sensitive or difficult.
The GMC’s guidance Good Medical Practice (GMP) states as follows at paragraph 50:
‘You must treat information about patients as confidential. This includes after a patient has died’.
Paragraph 50 of GMP is caveated by Confidentiality: reporting concerns about patients to the DVLA or the DVA which states as follows at paragraphs 2 and 7:
‘The Driver and Vehicle and Licensing Agency (DVLA) and Driver and Vehicle Agency (DVA) are legally responsible for deciding if a person is medically unfit to drive. This means they need to know if a driving licence holder has a condition or is undergoing treatment that may now, or in the future, affect their safety as a driver’ paragraph 2
‘If you do not manage to persuade the patient to stop driving, or you discover that they are continuing to drive against your advice, you should contact the DVLA or DVA immediately and disclose any relevant medical information, in confidence, to the medical adviser’ paragraph 7
The 2014 Glasgow crash and the subsequent evidence which emerged regarding the driver has prompted the GMC to review its position on confidentiality.
The proposed strengthened guidance will form part of a public consultation on the GMC’s core guidance on confidentiality. Thus far feedback received by the GMC from doctors suggests that they feel anxious about being criticised if they disclose information regarding patients, and rightly so, as patient confidentiality is fundamental principle.
Nonetheless, there must be circumstances where patient confidentiality can be overridden. That is not to say that this can be done lightly.
The GMC’s website advises that the consultation on Confidentiality, including reporting concerns to the DVLA, will run from the 25 of November 2015 until the 10 of February 2016. The consultation has been formulated to obtain views from patients and doctors alike.
Currently, a woman named as Mrs M has been granted permission to go to the Court of Appeal in what may be a landmark case. Mrs M has won the right to appeal against a judgement backing doctors who failed to disclose to her that the father of her child suffered from a fatal degenerative brain disease before she gave birth. After giving birth she discovered that she too has the Huntington’s gene, thereby increasing the child’s risk of developing Huntington’s to 50%.
Huntington's disease is an inherited condition that damages certain nerve cells in the brain. This brain damage gets progressively worse over time and can affect movement, cognition and behaviour.
Mrs M states that had she known of the risks she would not have given birth. Further, that her child’s father did not want her to be told for fear that she might terminate the pregnancy or harm herself.
The case could lead to the presiding Judges being asked to redefine the confidential relationship between doctors and patients, and also to rule on whether clinicians have a duty to inform family members that they may be at risk of inheriting a serious disease.
When to disclose
As previously stated, disclosure regarding a patient’s medical condition is not to occur in all cases.
Confidentiality (2009) advises doctors as follows at paragraph 37:
‘Personal information may, therefore, be disclosed in the public interest, without patients’ consent, and in exceptional cases where patients have withheld consent, if the benefits to an individual or to society of the disclosure outweigh both the public and the patient’s interest in keeping the information confidential. You must weigh the harms that are likely to arise from non-disclosure of information against the possible harm, both to the patient and to the overall trust between doctors and patients, arising from the release of that information’.
As such, if a clinician is aware of a medical condition that may seriously affect those whom a patient comes in contact with, as in the case of the lorry driver in Glasgow, they have a duty to try and persuade the patient to take all reasonable steps to manage the condition appropriately. This may mean advising the patient that they are not to drive and further, that they must inform the DVLA or DVA.
If the patient refuses to follow any advice given, it is in these circumstances that a doctor must consider whether they should disclose information regarding the patient’s medical condition, with or without their consent. It is always advisable, and the GMC’s guidance states, that a doctor should try to advise a patient that they are minded to make the disclosure if possible.
A doctor should only make a disclosure to the DVLA or DVA as a last resort where the patient has failed to act responsibly, and they pose a risk to the public or wider public interest. There is no absolute rule, and each case must be assessed on its own merits.
In addition, any doctor who is minded to make a disclosure should seek to discuss the case with a senior colleague and keep a full and accurate note of their actions.
Patient confidentiality is an important duty and one that should be jealously protected. Confidentiality is central to the relationship of trust between doctors and patients. This confidential relationship enables patients to seek treatment without fear or embarrassment. Nonetheless, there will be rare cases in which this duty can be breached. The public at large have the right to be protected from serious crime and serious communicable diseases. This can include those who are medically unfit to drive, but continue to do so against advice. In these cases, doctors should not fear legal/regulatory action been taken against them if they disclose confidential information in a safe and proportionate manner.
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