Disclosing patient information without consent
Disclosing patient information without consent- A precis of GMC advice
You must disclose information if it is required by statute or if you are ordered by a judge. Although obeying a judge’s directions is mandatory you should only disclose information that is relevant to the request. But other requests, such as from the Police when making their inquiries, can be more difficult so taking advice is always sensible. Another complication is that laws and regulations sometimes permit, but do not require, the disclosure of personal information. If a disclosure is permitted but not required by law, you must be satisfied that there is a legal basis for breaching confidentiality.
When thinking about whether to disclosure without consent you should seek advice from a Caldicott guardian, your MDO or similar expert adviser who is not directly connected with the use for which disclosure is being considered. If possible, you should do this without revealing the identity of the patient.
The legal basis for disclosing personal information without consent is section 251 of the National Health Service Act 2006. This allows the common law duty of confidentiality to be set aside for defined purposes where it is not possible to use anonymised information and where seeking consent is not practicable.
There is a public interest in disclosing information if the benefits to an individual or society outweigh both the public (see (b) below) and the patient’s interest in keeping the information confidential when disclosure may be justified to protect individuals or society from risks of harm. This includes when victims of violence refuse police assistance: disclosure may still be justified if others remain at risk, for example from someone who is prepared to use weapons or from domestic violence when others including children (whose safety is paramount) may be at risk. Other examples of situations in which failure to disclose information may expose others to serious harm include when a patient is not fit to drive, or has a serious communicable disease, or poses a serious risk to others through being unfit for work.
If you have decided to disclose information in the public interest you should still tell the patient unless it is not safe or practicable to do so, for example if doing so would undermine the legal purpose of the disclosure, for example by prejudicing the prevention, detection or prosecution of a serious crime. If it is practicable to tell the patient who then objects to the disclosure you should still consider and record their reasons.
So in summary, when deciding whether the public interest in disclosing outweighs the patient’s and the public interest in keeping the information confidential, you must consider and record:
the potential harm or distress to the patient arising from the disclosure – for example, in terms of their future engagement with treatment and their overall health
the potential harm to trust in doctors generally – for example, if it is widely perceived that doctors will readily disclose information about patients without consent
the potential harm to others (whether to a specific person or people, or to the public more broadly) if the information is not disclosed
the potential benefits to an individual or to society arising from the release of the information
the nature of the information to be disclosed, and any views expressed by the patient
whether the harms can be avoided or benefits gained without breaching the patient’s privacy or, if not, what is the minimum intrusion. the disclosure would comply with the requirements of data protection law and would not breach any other legislation that prevents the disclosure of information about patients the disclosure is the minimum necessary for the purpose
the information will be processed in a secure and controlled environment that has the capabilities and is otherwise suitable to process the information
the information is readily available to patients about any data that has been disclosed without consent, who it has been disclosed to, and the purpose of the disclosure subject to the caveats above.
The LMC recommends that you use the headings above as they are from GMC guidance. You must also document any steps you have taken to seek the patient’s consent, to inform them about the disclosure or your reasons for not doing so.