The Supreme Court – FS Cairo (Nile Plaza) LLC v Lady Christine Brownlie
The GMC last issued guidance to doctors on confidentiality in 2009. Much has changed since then; the hacking scandal, a more bullish approach by the Information Commissioner to taking enforcement action for breaches of the Data Protection Act and a sharper focus amongst professionals on the need to protect confidential information.
On 25 January 2017, the General Medical Council (GMC) published revised guidance on confidentiality applicable to all doctors practising in the UK. The GMC’s Chief Executive Charlie Massey, stated that the revised guidance is aimed at better assisting doctors to “understand their responsibilities when handling patient information in their everyday practice”.
Whilst revisions have been made to Confidentiality (2009) the key principles remain unchanged. The document is an essential read for all those in practice; here are some of the key important points of clarification contained in the new guidance:
Disclosures in the public interest
The new guidance clarifies that, whilst the confidentiality of medical care is recognised by law, there will still be circumstances where there is a public interest in a doctor disclosing confidential information that outweighs the benefits to an individual patient of their maintaining confidentiality. Doctors are advised that the disclosure of a patient’s confidential information may be justified in order to protect an individual, or the wider public, from the risk of serious harm. Examples given include a patient who is not fit to drive, thus exposing others to a serious risk or death and disclosures for the “prevention, detection of prosecution of serious crime, especially crimes against the person”.
Implied consent and the sharing of information
Greater emphasis is now placed on the importance of appropriately sharing information for the purpose of direct patient care. As an example, the guidance provides more detail as to the circumstances in which doctors can rely on implied consent to share patient information:
“Most patients understand and expect that relevant information must be shared within the direct care team to provide their care. …You may rely on implied consent to access relevant information about the patient or to share it with those who provide (or support the provision of) direct care to the patient if all of the following are met (a) you are accessing the information to provide or support the individual patient’s direct care, or are satisfied that the person you are sharing the information with is accessing or receiving it for this purpose (b) information is readily available to patients, explaining how their information will be used and that they have the right to object…..(c) you have no reason to believe the patient has objected (d) you are satisfied that anyone you disclose personal information to understands that you are giving it to them in confidence…”
The guidance contains a new statement reflecting the significant role that those close to a patient can play in providing support and care for them, and the importance of clinicians acknowledging that role.
The consequences of refusal of consent
Also included is a new requirement for doctors to explain the potential consequences of a patient’s decision to refuse to allow information to be shared for their direct care, requiring doctors to: “…explain to the patient the potential consequences of a decision not to allow personal information to be shared with others who are providing their care. … [and] consider with the patient whether any compromise can be reached.” The guidance continues and provides that if, after discussion, a patient who has capacity to make the decision still objects to the disclosure of personal information that the doctor is “convinced is essential to provide safe care”, they should explain that they cannot refer them or otherwise arrange for their treatment without also disclosing that information.
The revised guidance is a welcome resource to support doctors in their practice. Our clients often report that they find the issue of confidentiality particularly difficult to grapple with, especially in circumstances where a patient refuses to provide consent for information to be disclosed. The guidance may be seen as an appropriate response by the GMC to incidents such as the Glasgow bin lorry crash and the case of Mrs M, where doctors did not disclose to her that the father of her child suffered from a fatal degenerative brain disease before she gave birth.
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