Can you breach a patient’s confidentiality if you believe they pose a risk to others?
Authors: Marika Davies
Publication date: 16 Feb 2017
Doctors have a duty of confidentiality to their patients, but they also have a wider duty to protect the health of the public. Marika Davies explains the GMC’s updated guidance on confidentiality
Patients often confide in their doctors, and can usually do so safe in the knowledge that what they disclose will only be shared with those directly involved in their care. But occasionally a patient will tell you something that makes you concerned for the safety of others. Deciding whether or not to breach confidentiality in these situations can be challenging for doctors, who are mindful of both the importance of trust in the doctor-patient relationship and their wider duty to protect the public.
To assist with these dilemmas the GMC recently updated its guidance on confidentiality. The revised guidance was written following a consultation with doctors and patients, and will come into effect in April 2017. It sets out a framework for disclosing personal information—including situations in which a disclosure may need to be made to protect people who are at risk of harm.
Such situations may arise, for example, if a patient threatens to harm others; if they have a serious communicable disease; or if they are continuing to work or drive when they are not fit to do so. The confidentiality of a patient should only be breached in exceptional circumstances and in line with GMC guidance. Whenever you disclose personal information about a patient you must be able to justify your reasons for doing so, which may be on the following grounds:
If you obtain your patient’s explicit consent
In the first instance you should seek consent from your patient to disclose information about them, unless it is not safe or practicable to do so. For example if you have reason to believe that seeking consent would put you or others at risk of serious harm, or if doing so would be likely to undermine the purpose of the disclosure by prejudicing the prevention or detection of serious crime. You should consider any reasons given by the patient if they refuse.
If a disclosure is required by law
You must disclose information if you are ordered to do so by a judge or presiding officer of a court. There are also a number of laws that require doctors to disclose patient information, for purposes including the notification of infectious diseases, the prevention of terrorism, and the reporting of female genital mutilation in girls under the age of 18.
If a disclosure is in the public interest
The GMC says that a disclosure may be justified to protect individuals or society from the risk of serious harm, such as from serious communicable diseases or serious crime. For example if the disclosure is likely to be necessary for the prevention, detection, or prosecution of crime, especially crimes against the person.
In deciding if a disclosure is necessary in the public interest you should consider whether a failure to disclose would expose others to a risk of death or serious harm. The GMC says that “the benefits to an individual or society of the disclosure must outweigh both the patient’s and the public interest in keeping the information confidential.” In balancing these options you must consider the potential harm or distress to the patient, the potential harm to the public’s trust in doctors generally, the potential harm to others if the information is not disclosed, and the potential benefits if the information is released.
Making the disclosure
If it is not practicable or safe to seek consent, or if the patient refuses to give consent, and you are satisfied that information should be disclosed, the GMC says that you should act quickly. You should keep disclosures to the minimum necessary for the purpose. You should tell the patient about the disclosure of personal information that they would not reasonably expect, unless it is not practicable or would undermine the purpose of the disclosure—for example by prejudicing the prevention or detection of serious crime. Finally, you should keep a record of your decisions to disclose, or not to disclose, information.
Decisions can be complex and challenging, and you must be prepared to justify your actions. If you are not sure how the law applies, you should consult a Caldicott guardian or your medical defence organisation.
I have read and understood BMJ’s policy on declaration of interests and declare that I have no competing interests.
Marika Davies medicolegal adviser Medical Protection