Dr Edward Farnan, Medico-Legal Adviser with the Medical Defence Union, examines the circumstances under which doctors may be required to share information with the gardaí.
Being contacted by the Garda Síochána can provoke a certain amount of anxiety for a doctor. In most cases, there will be no need for any undue concern. However, before responding to any contact, it is important to think about why the gardaí might be approaching you. Below we look at some of the common scenarios reported by Medical Defence Union (MDU) members.
Perhaps the most common and familiar reason for the gardaí to contact a doctor is to request factual information about a patient. This may relate to a crime or other offence in which the patient was either the alleged perpetrator or the victim.
The importance of medical confidentiality is well-known. It is mentioned in the Hippocratic oath and the Declaration of Geneva as well as in the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Professionals. However, medical confidentiality in Ireland is not absolute and there will be circumstances when disclosure of information about patients is permitted or even required.
Disclosure is permitted, and will usually be straightforward, if the patient has given consent for this to happen. Ask the gardaí if they have sought and obtained the person’s consent, and, if not, if they are prepared to do so (or, alternatively, if they are happy for you to seek consent). In situations where the patient is the victim of the alleged offence, this is unlikely to be problematic. If, however, the patient is the alleged perpetrator, then approaching the patient to seek consent may, in some circumstances, prejudice an ongoing investigation – the gardaí will usually explain if that is the case.
In the absence of consent, you should consider whether the disclosure is required by law – for example, if you have been provided with a valid court order. Alternatively, consider whether there is a public interest in disclosure which outweighs the patient’s own private interest in their information remaining confidential, and the wider public interest in there being a confidential medical service.
Whether disclosure is in the public interest will vary from case to case. But factors which you may wish to consider will include the seriousness of the alleged offence, whether the gardaí would be able to obtain the same information from another source, and if the patient is in custody (and thus not a risk to anyone else). The onus is on the gardaí to provide you with sufficient information to justify any disclosure.
If you decide to disclose information without consent, then you should usually disclose the minimum amount of information that is relevant and necessary for the particular purpose. Carefully record what information you have disclosed and your justification for doing so, since you could be called upon at some future point to explain this. Similarly, if you decide that you cannot disclose the information requested you should also carefully record your reasons for this.
Confidentiality concerns are regularly raised by MDU members and we have more information about this issue on our website.
The gardaí may be investigating a case which has been reported to the coroner; for example, by taking statements relating to the death. This does not necessarily mean that a crime is suspected.
It will usually be appropriate to share relevant information with the gardaí when they are acting for the coroner. This may be by providing a written statement or by sharing the relevant medical records. The MDU website has further information on taking part in coroners’ investigations.
Of greatest concern for doctors is the possibility that they will be contacted by the gardaí in relation to a criminal matter where they are suspected of having committed an offence. Doctors may, of course, find themselves subject to investigation for matters independent of their professional role in entirely the same way as any other individual. Criminal investigations arising out of professional medical practice are much less common.
Fortunately, the MDU is not aware of a case in which a healthcare professional has been convicted of gross negligence manslaughter in Ireland. The offence will be found where a jury is satisfied that the accused has caused the death of a person by negligence, and where the negligence is deemed to have been of a “very high degree” and involved a high degree of risk of substantial personal injury to others. There have been several high profile cases and convictions in recent years elsewhere, for example in the United Kingdom (where the legal test for gross negligence differs slightly).
Allegations of having committed a sexual offence against a patient are more common. Cases often relate to intimate physical examinations and it is important that doctors are aware of and, wherever possible, comply with the Medical Council’s guidance relating to such examinations, including the appropriate use of chaperones (paragraph 35).
In the unusual event of a doctor being arrested and detained, they should be made aware of their right to consult with a solicitor before they are interviewed. They are also entitled to have a solicitor present during an interview by the gardaí and they should be advised of this.
If there is any suggestion that a patient has approached the gardaí raising concerns about your conduct which might prompt a criminal investigation, contact your medical defence organisation without delay.
Contact from the gardaí is not unusual. Applying the same basic principles regarding confidentiality and disclosure to a request made by the gardaí that you would apply to any other request will often help to resolve any concerns.
Depending on the nature of the request and your working arrangements, it will often be appropriate to seek input from the person in your organisation responsible for dealing with requests made under data protection or freedom of information legislation. Get advice from your medical defence organisation, especially if you are concerned about disclosing confidential information.
MDU membership is designed for State-indemnified doctors and gives access to expert guidance with dilemmas, such as those involving the gardaí, support with patient complaints, Medical Council investigations, inquests, and criminal matters. To find out more see www.themdu.com/ireland.
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