Ms Niamh Gallagher, Legal Counsel in Medisec, outlines the very limited circumstances in which it may be appropriate to breach patient confidentiality.
The Medical Council’s Guide to Professional Conduct and Ethics (the ‘Guide’) describes confidentiality as being central to the trust between doctors and patients. A doctor’s duty of confidentiality prevails beyond a patient’s death and can only be breached in exceptional circumstances.
Without assurances in relation to confidentiality, patients may be reluctant to seek medical advice or give doctors the information required to provide appropriate, effective care. Open discussions between doctors and patients can minimise patient safety incidents and help foster a relationship of mutual trust and respect.
The general position is that patient information is confidential and should only be shared with patient consent, or where the disclosure is required by law or in the public interest. Unfortunately, most doctors will encounter situations during their career in which they must consider whether to breach patient confidentiality. This article aims to provide an overview of the factors to consider when faced with such situations.
Disclosure of patient information with consent
Where a patient is capable of making their own decisions about their healthcare, the Guide provides that a doctor must get consent before disclosing the patient’s confidential information to any third party, including the patient’s relatives or friends. It is worth emphasising here that every adult patient is presumed to have capacity and therefore there is a presumption that consent will be required to disclose their confidential information.
Doctors frequently receive requests from relatives for information about their patients, usually where the patient is unwell and/or elderly and where there are family members providing some degree of care or assistance. Where the patient has capacity, the doctor should inform the patient and seek their consent as to how to proceed. Oftentimes, the patient will be quite happy for a family member to be involved in some, if not all, discussions about their condition, to be aware of what medications have been prescribed or to know what red flags to watch out for. However, where a patient withholds consent to disclosure of their information, that decision must be respected unless one of the exceptions discussed below apply.
Where a patient is found to lack capacity, paragraph 10.5 of the Guide places a positive obligation on doctors to take reasonable steps to find out if anyone else has the legal authority to make decisions on their behalf. If there is no-one with legal authority to make decisions on the patient’s behalf, the patient’s doctor is charged with deciding what is in the patient’s best interests. In that regard, consideration should be given to the patient’s past or present views (if known) and the views of the patient’s family or friends who may be familiar with the patient’s preferences, beliefs and values. However, it is worth emphasising that absent any formal legal authority to make decisions on behalf of the patient, the status of next of kin or of the family member does not bestow any automatic right to information concerning a patient who lacks capacity or to make decisions on their behalf.
Disclosure of patient information without consent
In certain very limited circumstances, disclosure of patient information may be required by law or in the public interest regardless of whether the patient consents. A doctor should inform the patient in advance of such an intended disclosure, unless to do so would cause the patient serious harm or would undermine the purpose of the disclosure.
a. Disclosure required by law
There are a number of specific legislative requirements that require doctors to disclosure confidential patient information. Common examples include where disclosure of the patient’s information is required on foot of a court order (including a production summons by the Medical Council), in accordance with infectious diseases regulations or in response to child protection concerns. At the outbreak of the pandemic, Covid-19 was added to the list of notifiable diseases.
A very relevant piece of legislation that requires doctors to make disclosure of confidential information is the Children First Act 2015 which requires mandated persons, including medical practitioners, to report any knowledge or suspicion of harm to children to Tusla and to provide information to Tusla by way of mandated assistance.
b. Disclosure in the public interest
A doctor may also have to consider breaching confidentiality if he/she considers that the disclosure is necessary to protect the patient or any third party from a risk of death or very serious harm. The key consideration to bear in mind is whether the public interest in disclosure outweighs the right to privacy of the individual concerned. This balancing of fundamental rights and interests should not be undertaken lightly and where possible a doctor contemplating a disclosure in the public interest should seek advice in advance from their insurer or indemnity body.
Paragraph 31 of the Guide states: “Disclosure in the public interest may be made to protect the patient, other identifiable people, or the community more widely. Before making a disclosure in the public interest, you must satisfy yourself that the possible harm the disclosure may cause the patient is outweighed by the benefits that are likely to arise for the patient or for others. You should disclose the information to an appropriate person or authority and include only the information needed to meet the purpose.”
Threshold for disclosure
The threshold for disclosing information in the public interest was considered by the High Court in 2018 in a case taken by the Child and Family Agency (Tusla). The Court in that case was asked to consider whether Tusla could disclose a patient’s positive HIV status to a third party with whom it was believed the patient may have been sexually active and where there were concerns about the patient’s compliance with their antiretroviral medications. Significantly, the Court specifically noted that it could just as easily have been a doctor seeking the order.
The Court considered that is only the most “compelling circumstances” that would justify breaching patient confidentiality and confirmed that the test for disclosure in the public interest was whether: “On the balance of probabilities, the failure to breach confidentiality creates a significant risk of death or very serious harm to an innocent third party.” [emphasis added]
In applying the above test to the facts of the case, the Court found that the threshold for disclosure in the public interest was not met. The Court held that Tusla had not proven that the patient and the third party were sexually active, let alone that they were having unprotected sex. Accordingly, the Court found that there was ‘no risk’ of the third party contracting HIV. The Court went on to find that even if the third party was at risk of contracting HIV, that the condition whilst significant was no longer a terminal condition, but rather a chronic and lifelong condition that can be managed and therefore did not meet the ‘very serious harm’ threshold required to justify breaching patient confidentiality.
A GP’s patient presents having suffered from a soft tissue injury when she crashed her vehicle. The patient holds a Group 2 driving licence and drives a school bus for a living. The patient has admitted to engaging in what amounts to persistent alcohol misuse, but refuses treatment and to accept that it will affect her driving, either personally or professionally. She is unwilling to stop driving and will not consider counselling or addiction treatment. It is the GP’s clinical opinion that the patient is unfit to drive and is a danger to herself and others.
In this instance, it is recommended that the GP provide the patient with a copy of the Alcohol and Driving leaflet from the National Driving Licence Service (NDLS) and advise the patient that she is unfit to drive and poses a risk to public safety. The patient should be advised to notify the NDLS of her condition. If the patient continues to refuse to stop driving or confirm that she will notify the NDLS of her condition, the GP should outline her obligations pursuant to the Road Safety Authority’s Sláinte agus Tiomáint Medical Fitness to Drive Guidelines including that she may have to disclose information regarding the patient’s condition to the NDLS and/or the gardaí. It is also important to ensure that if a report is made to the NDLS and/or the gardaí that only the minimum amount of information necessary should be disclosed to the minimum number of people. As always, it is advisable that the GP carefully document her decision making process in the patient’s notes. The GP should contact her indemnifier as soon as possible for advice in relation to dealing with the patient and making the disclosure if necessary.
A doctor’s duty of confidentiality is fundamental to the relationship of mutual trust and confidence that exists between a doctor and patient. There are, however, very limited circumstances, outlined above, in which it may be appropriate to breach that duty of confidentiality.
As is clear from the decision of the Court referred to above, a very high threshold must be met to justify breaching patient confidentiality in the public interest. Having regard to the very serious implications that go with breaching patient confidentiality, doctors contemplating such a decision should first contact their indemnifier for advice.
References available on request
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