Health Law: The Confidentiality Issues

Topic: Health Words: 5330 Pages: 18

Introduction

The medical profession in the United Kingdom is a sensitive field because of the matters it tackles. It is therefore under strict vetting to ensure that the practitioners treat patients with the due duty of care and within the framework of the stipulated practice guidelines. In the UK, the profession is under strict monitoring and control of General Medical Council commonly referred to as GMC. This council was formed in 1958 with the object to ensure that proper standards in the practice of medicine are maintained. This helps in promoting and maintaining the health and safety of the community at large at all levels in the society. The council in its statutory capacity generally provides guidelines to doctors on medical ethics to enable them deliver quality duty of care to the patients. One of the most critical areas that General Medical Council deals with is the issue of the privacy of the patients’ information and details. The GMC provides a supplementary guidance on how these principles should be employed and situations that they should be applied by doctors¹1. Confidentiality is important in the relationship between the doctor and the patient because it will enable the patient to give all the material information that will aid his treatment but only if he is assured that the information will be treated in confidence²2. Some information is very sensitive and should not be disclosed to the public because of the effects it will have on the patient. GMC confidentiality principles, however, provides that though confidentiality is an important duty, but it is not absolute especially in the cases where the law requires one to disclose some information or it is justified that the information is in the interest of the public.

The purpose of this essay is to discuss the guidance on Confidentiality that was recently revamped or revised by the General Medical Council in 2009. the paper explores how the guidelines emphasises the importance of balancing the public interest in maintaining patient confidences with the public interest in disclosure in certain circumstances, e.g. to prevent harm or to facilitate medical research³3. The paper also assesses the credibility of the guidance and how well it assists in determining where an appropriate balance of interests is struck.

When and how confidentiality arises

Confidentiality could simply be defined as the principle arising when the information is received in the course of a professional relationship where such information is received in secrecy and should be protected from the access of others. The nurses have a duty of care to their patients and it is also their duty to remain confidential with the information of the patients. When nurses or any other medical practitioner is dealing with the patients, they tend to collect some information from them relating to illness or treatment that the patient is going through. The information collected is considered necessary to help the doctor in treating the patient. In some cases, some information could be quite embarrassing and private and may prove difficult for the patient to share with the nurses. This information fall into the category of secret information that should be treated with a lot of care. The patients may not be able to disclose some information even if it is crucial in their treatment if they will not be assured that the information will remain a secret⁴4. The act of faith of the patient in the health care profession need to be protected and the law therefore provides for means of protecting it. Since the health care professionals have the duty of care towards the patients, it is considered a breach of duty if they use the patient’s confidential information without the consent of the patient. Whether they use such information directly or indirectly without the consent of the patient, the act amounts to a breach of duty by the law. Although there is no specific law on confidentiality, the doctrine of confidentiality is an aspect in the duty of care owed to the patients by the health care professionals and is enforceable there is a breach of duty thereof. This could translate to mean that though there is no specific law on confidentiality, the duty of confidentiality does arise in various areas of law and equity⁵5. Under equity, the health care professionals are expected to act fairly towards the patients and their confidential information. They should treat their information fairly and not disclose it where not necessary. Some areas of law may also enforce the doctrine of confidentiality. For instance, duties of care in negligence where the health care professional may be considered negligent in cases they negligently disclose the patients’ information. For example, if they leave the health records of the patients in a place accessible to others, the act will be considered as negligence. It is the duty of care of the health professionals not to disclose any confidential information of the patient without their consent or any legalization.

Confidentiality basically arises because the patients have the right to have the information they give either in writing or word of mount in the course of their treatment treated confidentially. There are some specific areas that cause confidentiality to arise. One of the causes is the ethical codes of the health professions which stipulate the ethics that need to be followed by health care predictions⁶2. There are other cases where states recognize the right of confidentiality through provisions in professional licensure regulations or in confidentiality and privilege statutes. The provisions give the health professionals a legal framework within what they are supposed to act to ensure that the confidential information of the patients is well maintained⁷6. The other cause is that the common law has long recognized an attorney-client privilege. Developing case law has carved out similar protection for patient information protection although not as stringent. Finally, the right of confidentiality derives from various constitutional guarantees although an explicit constitutional right of privacy does not exist. The duty of confidentiality of health care professional is therefore not absolute and there are circumstances that arise where it is both ethical and legal to break confidentiality⁸7. This could be termed as exemptions to the doctrine of confidentiality in cases where revealing patients’ information without their consent is not considered a breach of duty.

Patients’ information protection

While the medical practitioners require information concerning a patient so as to provide the patient with the necessary care and treatment, it is their role to ensure that the information that they receive is well protected⁹8. The security procedures should thus be strengthened so as to ensure that the information relating to a patient is safe and it’s only shared with the medical practitioners who really require it¹⁰9. The information about the patient should be used for particular cases only which includes; to provide he necessary treatment, to cater for the general public’s health, to enable the medical professionals to contact the patient in case of such health checks like immunization, to meet the future needs of the patients among others¹¹10. On the other hand, the patients should be careful not to disclose information that they are not supposed to e.g. ensuring that any conversations with they patients cannot be listened to by others¹²11.

For proper protection thus, the telephone conversations should be done to the specific patient unless the patient has given the medical professionals consent to speak to others i.e. relatives and friends.

Medical confidentiality is usually considered ideal in such circumstances as the sexual history and sexually transmitted diseases, sexuality relating to adolescents, the psychiatric conditions, alcoholism and drug abuse and marginalized persons.

Importance of medical confidentiality

Confidentiality is important because it helps to maintain the patients’ information secret. The patients are likely not to undergo medical check ups or seek medical treatments incase where they are suspicious that they information that they disclosed will be revealed without their genuine consent.This also ensures that they public maintains confidence on the health institutions and this facilitates proper health care in the country. Confidentiality in this case helps the doctors to obtain more information about the patient so as to devise the appropriate treatment.

Confidentiality ensures that the members of the society are not embarrassed or disapproved¹³12. Some private information is so sensitive to an extent that they can cause serious harms to individuals. Confidentiality thus helps people to have a piece of mind and not to worry that others will get to know about their personal details and use them to embarrass them publicly. Confidentiality in this case thus respects the patients’ dignity as well as their right to privacy.

The disclosure of health information about someone e.g. HIV/Aids e.t.c. result to stigmatization as well as discrimination in the society and therefore confidentiality plays a vital role of ensuring that there is no isolation and that people continues to co-exist in a peaceful and friendly manner.

Confidentiality is also ideal as it prevents other people from getting harmed. It also respects the independence of the patient as well as demonstrating the doctors’ trustworthiness to the patients. Thus in the case of R v Cardiff Crown Court, ex p Kellam,which involved the discovery of a person who was believed to be a potential murderer, the court held that it is the duty of the medical professionals to ensure that patients confidentiality is maintained¹⁴13.

Content of the duty of confidentiality

Usually, one may not at all wish that their medical data be disclosed to other people due to the fact that the it can affect their his or her life in one way or another. For instance, the medical records may affect ones job or insurance coverage¹⁵14. The information could also be used to embarrass a person as the disclosure of medical information could provide details about the private life of a person. The health practitioners in many nations are vested with the role of maintaining copnfidentialioty.The duty of confidentiality is thus put in place so as to protect dignity of the patients.

The duty of confidentiality entails a moral requirement that is usually imposed on another person either by an affiliation that is in accordance with the laws, by professional standards or by a mutual agreement that is obligatory¹⁶15. The contractual obligation to maintain the patient’s communications in a manner that is confidential is usually as a result of the following relationships i.e. attorney and client, physician and patient as well as priest and penitent. The above relationships are deemed by law to have a special role in preventing the revelation of confidential information. In health law, the duty of confidentiality usually provides legal protection and prevents health practitioners from disclosing certain information with patients. The rules thus pertain to the secrets that are shared between the medical practitioners and the patients during treatment. The law however has the view that even if confidentiality is an important aspect, it can be disclosed in the following circumstances; if the law requires confidentiality, if it’s meant to cater to the patients’ health care needs and if the disclosure is justified in accordance with the interests of the public. The law provides that when revealing the information concerning a person, one must use the information that is coded and ensure that the patient is readily aware that his or her private information is about to be disclosed. The consent of the patient for whom information is to be revealed is, therefore, a must and the medical professional should ensure that he has up-to-date information concerning the requirements by law i.e. the common law as well as the data protection legislation. When the medical practitioner is well satisfied that the patients’ information should be revealed, he or she should then act quickly so as to reveal all the necessary information. The practitioner should also work hand in hand with the patients to ensure that their legal rights are not violated i.e. the patients have the right to be informed on how the medical practitioners intend to use their private information and also they too have the right to access their health information¹⁷16. The law requires that the information that is disclosed should be free form any errors and relevant.

GMC guidance on Confidentiality (2009) and its role in determining where an appropriate balance of interests is struck

The General Medical Council usually sets out standards for confidentiality that should be followed and understood by the medical professional with regards to the private information of the patients¹⁸17. The guidance came into effect on the 12^th day of October 2009.The General Medical Council has several principles which guides the medical professionals in the course of their duties. The GMC guidance principles on confidentiality are also meant for the general public so as to let them know of what is expected on the part of the medical professionals. The GMC guidance principles relates to those situations which the medical professionals comes across or which are deemed to be challenging and includes reports about patients to DVLA,gunsghots as well as knife reporting as well as reporting on serious diseases which are deemed as communicable.

Disclosing information concerning serious communicable diseases

Confidentiality does not allow patients to be discriminated by the medical professionals. Persons who are suffering form communicable diseases are often faced with privacy issues. The General Medical Council provides that the medical professionals should ensure that the information that they have been entrusted with by the patients and in particular the information relating to infectious status is always controlled¹⁹18. Usually; the patients have the right to obtain standard medical treatment irrespective of the ailment they are suffering from.

The General Medical council thus requires the medical practitioners as well as their patients to get vaccinated so as to prevent the occurrence of communicable infections. If the doctor have the view that he or she has a communicable disease that can be transmitted to his or her patients, there is thus need to seek advice from a colleague in the health industry so as to get to know the right treatment and how to go about it²⁰19.

The General Medical Council requires that the doctor to explain to the patients that their private details will be shared with the rest of the medical staff team²¹20. If the patient objects the communicable infectious information to be shared with another person, the medical practitioner should adhere to their concerns unless the doctor has the view that the decision not to reveal the information would pose a risk to the public as well as the medical staff team²²21.

It is the duty of the medical practitioner to inform the patients on how they can free from the infections and also the importance of revealing seeking medical help promptly in case where they suspect to be suffering from communicable diseases. The doctor should alert the authority in place about the communicable diseases so to facilitate the control and should use coded details where necessary so long as the overall objective will be realized.

Reporting gunshots as well as knife wounds

The United kingdoms’ GMC has also came up with guidance which should be followed while treating the patients who are victims of such crimes as knife wounds and gunshots.the General Medical Council in the UK issues guidelines which allows the medical professionals to violate the confidentiality so as to cater for the interests of the general public²³22.The medical professionals are thus required to report to law enforcement as and when they treats a patient who is suspected to be a victim of gunshots crimes²⁴23. According to GMC 2009, the knife wounds as a result of accidents needs not to be disclosed to the police except in case of minors. The process of reporting starts where the victim informs the medical professional about the occurrence of an injury and the place where the injury actually occurred. The victim is then asked as to whether or not he or she is wishing to reveal the same to the law enforcers. The medical professional asks the consent of the patient in order to obtain additional information²⁵24. Incase where it is not practicable to obtain consent e.g. in situation where the patient is unconscious, the medical professional then is required to consider as to whether there will arise any violation of the confidentiality rule if he or she goes ahead and discloses the patient’s personal information. The revelation is considered to as justifiable if there is the existence of risk or the revelation can help to prevent the occurrence of a serious crime. Disclosure is essential as it allows the law enforcers to act promptly so as to prevent the general public from any danger²⁶25.

The GMC further provides that the doctor should not give the law enforces any information in a case where the public interest rationale for revealing the private information does not arise. Incase of a minor who suffers knife injury and gunshot wounds, then the right people should be informed such as the guardians and parents as well as the police so that appropriate actions can be taken²⁷26. Being a member of the professional body, the doctor is also required by GMC to provide justification relating to the decisions of not sharing the information about the minor who has suffered injury.

The duties of a doctor in accordance with the GMC

The confidentiality that exists between doctors and patients is as a result of the potential patients seeking Medicare and advice from a medical practitioner. The patients usually entrust the doctors with their private information and therefore it is the duty of the doctors to ensure that the information is given to them by the patients is protected from unauthorized access. According to the General Medical Council guidelines, doctors must act in manner that is acceptable and they should thus develop trust with their patients²⁸27. The doctors must therefore show concern for the wellbeing of the patients’ health. They must uphold respect for the human life. The patients’ care should be the first priority²⁹28. The doctors are required to keep his professional skills current and should only work within his or her competency limit. He or she should never discriminate patients and should assure the patients that the information that they reveal will be confidential. The duty by the medical practitioners to maintain confidentiality does not stop after the patient ceases to visit the health center but it continues to exist indefinitely.

The medical practitioners should enhance their relationships with the patients and so they must work together with them by listening to the patients’ issues, giving patients adequate information relating to their health conditions that is easily understandable, respecting the rights and opinions of the patients as well as supporting them so as to recover from illness quickly³⁰29. The rights of the patients includes the right to be informed on how the information obtained from them will be applied and also the right to access their health records as and when they require to do so.

It is also the duty of the medical professionals to exercise integrity and honesty while in the course of their duties³¹30. This entails that they should act promptly so as to help the patients and should never abuse their patients whatsoever. A doctor is not bound however to provide a duty of care for a patient who has already been discharged The duties of a health professional is found in the case of Clunis v Camden and Islington HA whereby a discharged psychopath who was jailed as a result of murder. The court held that negligent did not arise in this case because the care of the client was vested under the local authorities³²31. Therefore, the duty of care on the part of medical professionals does not exist in an inpatient situation.

Responding to the criticism in the press

Just like any other profession, the health profession is also faced with challenges and more than often, doctors find themselves being criticized by the media with regards to their behaviors³³32. The criticism can entail incorrect and misleading details about a medical practitioner and this usually inconveniences them. Though the criticism can cause distress as well as frustration on the medical practitioners, they are however not relieved their role of ensuring that the patient’s confidentiality is maintained at all times. The mere disclosure of private information concerning a patient without their authority can erode the public confidence in the health profession. The doctor is thus required to act in a professional manner while responding to the allegations that are made before him or her. This implies that he or she needs be cautious not to be too much involved in responding to allegations and instead control his or her public responses to the media.

Incase where the criticisms requires the doctor is required to provide additional information concerning his practice, the General Medical Council advices the doctor to be cautious not to disclose the patients’ private information without first obtaining their authority³⁴33. Incase where the doctor decides to deny the allegations that appears in the press, he or she also ensure not to reveal the patient’ information whatsoever.

The doctor is required to consult with other medical professionals with regards to addressing the criticisms that have been made against him or her. The doctor should not act quickly and rather he or she should seek legal address for proper guidance. The doctor needs not to respond to all criticisms and therefore he or she should only respond to those criticisms that are worth his or her input and ignore the rest³⁵34.

with regards to the liability of medical practitioner, the case of Tarasoff v. Regents of the University of California in the United States, it was held that medical practitioners are liable as a result of failing to reveal confidence relating to their patients in an effort to protect another person from becoming a victim of a serious harm. However, the courts in the United Kingdom examines this matter from a legal perspective and rules put that medical practitioners should not be liable if a warning does not concern public interest and if harm does not exist³⁶35.

Exemptions to the duty of confidentiality

The following are the exceptions in which private information may be revealed without the consent of the patient; where the doctor is allowed by the law to reveal the information, in order to avoid the occurrence of a crime, where the information is not confidential anymore and finally to prevent the occurrence of a serious harm³⁷36.

Disclosures in the public interest

Both the citizens and the society are deemed by law to benefit form the private information that is revealed during treatment³⁸37. The other objectives of revealing the private information about people are to protect citizens from potential dangers like crime and contagious diseases, to enhance the medical research among others. Medical information relating to someone may thus be disclosed without his or her consent for the mutual benefit of the society. The public interest in this matter relates to education, research among others³⁹38. The General Medical council guidance provides that one must consider the dangers that may result from the refusal to disclose the information Vis a Vis the harm that may arise to both the patients as well as the medical professionals from the disclosure of the information. According to the General Medical Council guideline, the medical practitioner should still consider the reason as to why the patient is refusing to reveal the information⁴⁰39. With regards to the General Medical Council guideline, the doctor should first determine as to whether the information is ideal as far as the public interest is concerned. The doctor is deemed to continue pursuing the consent of the patient in case where he or she believes that the information has an effect withy regards to the general public⁴¹40. The doctor may find it hard to obtain the patients’ consent in the following circumstances; where the patient lacks the capacity to give his or her consent⁴²41. The doctor in this case is required to seek advice from the legal representative of the patient or form friends as well as close relatives of the patient. The other instance in which the doctor may find it challenging to obtain the patients’ consent is where he or she believes that the mere act of obtaining consent would disregard the overall objective of disclosure e.g. where he or she believes that it will prevent serious crimes from being detected.Also,the doctor may not succeed in obtaining the consent of the patient in the case where he or she believes that obtaining consent would expose the doctor and the general public at a risk.Also,the doctor may find it hard to obtain the patients’ consent in case where there is no adequate time to seek consent from the patient and appropriate actions requires to be promptly undertaken e.g. in controlling contagious diseases from spreading.

It is the right of the patient to know that his or her private information will be disclosed in the public interests domain. Unless in the above circumstances, the doctor is required to inform patients about it.

The case of Duncan v Medical Practitioners Disciplinary Committee in New Zealand however cleared the air with regards to the revelation of information in the interest of the public. It was held that a medical professional ought to act in a professional manner in such an instance which requires urgent action so as to prevent the occurrence of harm. The doctor must therefore not hesitate to take the required action even if it entails breaching the confidentiality.

Disclosures concerning people who are mentally ill

Mentally ill persons usually lack the capacity to consent and as such it gives the medical practitioners the authority to disclose their private information. However, the General Medical Guidance provides that before deciding as to whether or not to reveal information concerning a patient doctor should first consider providing the patient proper. The doctor should also respect the privacy as well as the dignity of the patient and also encourage participation by the patient as much as possible with regards to the revelation of their private information. The doctor should also determine as to whether the patient is mental incapacity is temporary or modern as this guides him or her to know whether the disclosure can be made in a future time when the patient would have regained his or her mental capacity⁴³42. The doctor should consider the previous preferences which may have been made by the patient as well as views of the legal representatives or the persons that are trusted by the patient. The views from friends and relatives of the patient should also be considered before making the disclosure decision. The doctor should also consult with his or her medical professionals so as to gather more information about the wishes of the patient and to ensure a well informed disclosure decision.

However, in case a person who is mentally ill wishes that the doctor should not go ahead and disclose his or her private information, the doctor is deemed to persuade the mentally ill persons to allow the right person to be engaged in the discussion. If the mentally ill persons refuse and the doctor is convinced that the decision is good for their wellbeing, then he or she may reveal the information to the authority or an ideal person by first discussing the decision with the patient⁴⁴43. The doctor is also permissible to reveal the same to close friends and relatives of the patients and with any person who is legally allowed to represent the mentally ill person.

Incase where the doctor holds the view that the patient that the mental illness is as a result of sexual abuse or other related causes, then he or she should disclose the information to the authority or the right person promptly i.e. if the doctor has the view that the revelation of information would be ideal as far as the best interests of the patient is concerned. If for instance the doctor believes that the revelation of private information would be against the patient’s best interests, then he or she should discuss it with a qualified professional. Incase the doctor decides not to reveal the information, he or she is required to document the rationale behind not disclosing the information in the health records of the patients and then the doctor should be adequately prepared to defend his or her decision.

In the case of D v National Society for the Prevention of Cruelty to Children, the court held that public interest entails that the people in authority who have the right to the information should not reveal the sources of information that they pose.

Conclusion

Confidentiality is the key as far as the trust between the patients and medical professionals is concerned without which the patients would hesitate from obtaining medical care or otherwise provide their private information to the medical practitioners. The duty of confidentiality which was revised in 2009 is important as far as the health law is concerned as it regulates the conduct of the doctors and also ensures that ideal medical practices are attained. The General Medical Council in the United Kingdom has indeed provided doctors with proper guidelines which guide them during their course of duty. The guidelines ensure that information sharing is done in an appropriate manner so as to enhance the provision of medical services to the patients.

The doctor should respect the wishes of patients who are not in a position to allow their personal information to be disclosed and the doctor should only disclose the information if he or she is justified that the disclosure is in the interest of the general public. If for instance, the patients are reluctant to reveal information which the medical practitioner deems fit in the provision of the health services, the medical practitioner should in turn give patients a clear explanation or make arrangements for the patient’s treatment without revealing their information whatsoever⁴⁵44. The doctor should also ensure that anyone whom he or she discloses the patient’s personal information also maintains confidentiality of the same.

There are situations which arise upon which the patients’ consent is hard to obtain such as emergency cases and in such circumstances, the doctor is deemed to discuss the patients’ information with the caregivers such as friends and relatives. The patient should be informed on how their private information was revealed in case where they are able to understand.

The disclosure thus of the medical confidentiality can be done with the consent of the patients. The patients usually benefits from the disclosure of the information. It prevents other people from getting harmed. Disclosure usually provides the medical practitioners with additional information and it is therefore ideal as far as medical research is concerned.

The disclosure of information with the consent of the patient should always be encouraged. The patients should be made to understand the nature as well as the effects that result from the revelation of their private information⁴⁶45.

With regards to the disclosure after obtaining consent from the patient, the General Medical Council requires that the consent should be original, made in writing and should be directed to a named medical professional. The medical professionals usually acquire more information during the course of their duties and the information is deemed to be confidential at all times. Confidentiality is also not unconditional and the doctor can disclose the patients’ details without his or her concept in exceptional circumstances. Disclosure of the information should only be done with the authority from the patient for his or her own advantage and the disclosure should be justified in case the consent form the patient is not obtained. The disclosure of confidentiality should be made to the right people e.g. friends and relatives as well as the authority. The disclosure should be accurate and relevant and the reasons that led to the revelation of information should be filed in the health records. The patients require to be informed about the disclosures too.

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Footnotes

11 Mason, JK, RA McCall & G T Laurie, ‘Law and Medical Ethics, Eighth Edition’, Medical Confidentiality, Oxford: Oxford University Press, 2010, pp. 172-208.
22 Bassett, EH & K O’Riordan, ‘Ethics of Internet research: Contesting the human Subjects Research model’, Ethics And Information Technology, 2002, 4, pp. 233-47.
33 Bass, LW & JH Wolfson, ‘Professional courtesy is obsolete’, N Engl J Med, 1978; 299(14), 772–774.
44 Antelman, K, ‘Do open access articles have a greater research impact?’ College & Research Libraries News, 2004, 65(5), pp. 372-82.
55 Botkin, J, ‘Protecting the privacy of family members in survey and pedigree Research’, JAMA, 2001, 285(2), pp. 207–211. 6
76 Botkin, J, ‘Protecting the privacy of family members in survey and pedigree Research’, JAMA, 2001, 285(2), pp. 207–211.
87 General Medical Council (GMC), Confidentiality: disclosing information about Serious communicable diseases, General Medical Council, UK, 2009. Web.
98 Carson, A M, ‘that’s another story: narrative methods and ethical practice’, J Med Ethics, 2001, 27(3), pp. 198–202.
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