Discussion of The Issue of Confidentiality Within Healthcare

Within this essayc will be discussed, attention will focus on the necessity of maintaining confidentiality as a legal and professional aspect of providing care and how this affects trust within the Physician Associate (PA) - Patient relationship. In particular, focus will be placed on the areas in which confidentiality is breached, both in situations where there is a legal mandate insitu and in particular where there is no legal statue per se but precedence has been acknowledged in Common law.

Confidentiality has been at the heart of medicine since its inception, indeed an essential tenant of the Hippocratic Oath states:

Whatever, in connection with my professional practice, or not in connection with it, I see or hear in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all should be kept secret.

Hippocrates reflects the importance and value of confidentiality in the PA- Patient relationship, the core of which is honouring the ethical principal of autonomy: allowing an individual to have control over decisions effecting her medical treatment and providing choice to what happens to the information she imparts (Nixson 2017).

All staff working in the NHS are bound by a legal duty of confidence to protect personal information they may come into contact with, this is not just a requirement an employee’s contract of employment but also a requirement within the common law duty of Confidence and the Data Protection Act 1998. (Hywel Dda University Health Board 2015).

In order for there to be an effective PA-Patient relationship, the patient and society as a whole needs to have confidence in the system:

Trust is an essential part of the doctor-patient relationship and confidentiality is central to this. Patients may avoid seeking medical help, or may under-report symptoms, if they think their personal information will be disclosed by doctors without consent, or without the chance to have some control over the timing or amount of information shared.

In essence, for the PA to be able to give safe and effective care, the patient should feel comfortable telling her secrets, inner most thoughts and to be honest. The patient should be able to expect that any information imparted will result in full confidentiality, on occasions where confidentiality needs to be breached this should be an exception to the rule and for the ‘greater public good’, more so the patient should be aware of any breach and to whom (Brazier& Cave 2011).

There are many situations in which confidentiality is acceptably breached within medicine, including when a patient has given her consent, where there is an actual or threat of serious harm, for example in order to protect children or vulnerable adults, or disclosure in the ‘public interest’ for example. As well as the public in general thinking these are ethically acceptable breaches (Jones 2003), there are statutes mandating certain breaches in law. For example, there is a legal obligation under the Public Health (Control of disease) Act 1984 combined with the Health Protection (notification) Regulations 2010 which requires PAs to not only treat patients with named diseases within a strict set of criteria but they are mandated to notify the relevant local body, such as Public Health Wales. The public as a whole acknowledge the importance of such breaches of confidentiality as it is a generally accepted premise that disclosure is for the public good, one could argue as such making the law easier to pass in the first place (Herring 2017), public health is prioritised over personal confidentiality in order to minimise the spread of such infections.

When breach of confidentiality becomes contentious is where there is no legal mandate to disclose. It has been acknowledged that the law surrounding this area is haphazard (Pattison 2014)) and less than satisfactory (Herring 2017) due to few precedents set in Common Law and yet there are large numbers of statutes governing which can often contradict each other with levels of importance (Stanton 2018). Key statutes being the Data Protection Act (2018) and the Human Rights Act (1998). Herring makes the point that Professional bodies such as The GMC have clear guidance on how their members (including PAs) must act in a breach and the courts in turn have somewhat mirrored professional guidance in Common Law. It should be noted that this lack of clarity in law can also negate people from bring forward future proceedings as such calling the ethics of such regulations into question. (Herring 2017).

The seminal case in Common law that specifically addresses confidentiality breach within a healthcare setting as such setting current precedence is W v Egdell (1990.)

In Egdell, W had been convicted of Manslaughter and detained under the Mental Health Act (MHA) (1983). W had requested an independent report from a psychiatrist (Egdell) for an upcoming mental health tribunal. Egdell wrote within his report that W continued to be extremely dangerous stating that those currently responsible for his care did not seem to realise how dangerous W actually was as highlighted by his continuing obsession with explosives. W’s counsel exercised his legal right and chose not to include this report in the hearing.

Egdell then breached patient confidentiality by sending his report to both the Home Office and the director of the institution where W was being held. Egdell believed he was acting in good faith and felt it was morally and professionally legitimate to breach W’s confidentiality in order to protect the public of the overt risks W posed to significantly harm others.

Egdell won his case at the court of Appeal but with the important provision that W does have rights to some degree of confidentiality, namely Egdell could not write about the case in a journal article, sell to a newspaper, ‘gossip’ with colleagues or write a book. In any of these situations appropriate steps would be needed to protect W’s identity, which considering the importance of this case to date would be exceptionally hard to do.

Extensive discussion around this case highlights areas of significance, namely: the threat of a real and serious danger to the public: there should be convincing evidence of the likelihood of serious harm and the risk must be ongoing. For example, a past risk is not sufficient. This could be seen in a woman with post partum depression (PPD) expressing a desire to harm her newborn, having these feelings with one pregnancy does not necessarily dictate she would have these thoughts with future pregnancies or even suffer with PPD at all.

Any disclosure made should be limited to the minimum information necessary to protect the public and to the appropriate people who have a legitimate interest in the matter.(Brazier 2011) in the above example, disclosing to social services that mother has voiced a desire to cause harm to her baby, is legitimate, what would not be pertinent to the discussion with social services is the fact that the mother had breast augmentation surgery thirteen years prior or alternatively informing the breast surgeon of the mother’s voiced intent to harm.

In the recent case of ABC v St George’s Healthcare NHS Trust, South West London and St George’s Mental Health Trust, Sussex Partnership NHS Foundation Trust (2017) the issue of duty of care as it relates to confidentiality breach was explored. ABC’s father was convicted of manslaughter. He was sentenced to a hospital order under the MHA (1983), within a few years after sentencing he was diagnosed with Huntington’s disease a chronic, progressive and fatal neurological disorder. Specific to the case is Huntington’s is a heredity condition in which a child of a parent with the disease has a fifty percent chance of developing the disease also.

Despite concerns and discussion with the father from his medical team, he expressly forbade disclosure of his condition to ABC. Later ABC was accidently informed of her father’s diagnosis after having giving birth to a child. ABC was tested as a consequence of the disclosure and also confirmed to have the disease.

ABC brought a ‘wrongful birth’ claim against the NHS organisations involved in her father’s care to the High Court. The foundation of her claim was that her father’s confidentiality should have been breached and as a consequence she would have terminated her pregnancy on the basis she would eventually become seriously ill and also that the child would potentially have a fifty percent chance of inheriting the disease also.

The case was not heard in the High court as a ‘strike out’ order was accepted. This decision was later overturned by the Court of Appeal, the decision was reversed on the basis that there is at least room for discussion as to whether the existing law about whom clinicians owe a duty of care should be extended to third parties. The judge specifically cited professional genetic guidance (Royal College of Physicians, The Royal College of Pathologists, The British society for Human genetics 2011) which makes a clear point that there are professional obligations towards those who although not in an existing relationship with a clinician have a vital interest in information that the clinician had obtained www.ukhumanrightsblog.com. As such, these obligations are a good foundation for an extension of the legal duty of care to individuals potentially affected.

Whilst the medical, law and ethics communities await the trial of ABC much discussion surrounds possible alternatives with regards to the choice between preserving the confidentiality of one patient and preventing harm too another especially in the field of genetics as testing is becoming more prevalent.

Nixson (2017) discusses whether a duty of care should also be extended to a ‘duty to warn’ as it has been suggested that the greater harm in maintaining confidentiality is to the relative, and therefore the rights of the relative should predominate (Dove, Chico, Fay, Laurie, Lucassen, Postan 2019). Some Countries have already adopted this premise, For example in Australia it is permitted to disclose genetic information without a patient’s consent in circumstances where the doctor reasonably believes that the use of disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of another individual who is a genetic relative ( Nixson 2017).

This is also highlighted in (GMC 2018), which state that if a patient refuses to consent to information being disclosed that would benefit others (i.e. genetic relatives); disclosure might still be justified ‘in the public interest’ if failure to disclose the information leaves others at risk of death or serious harm. Although it has been noted that The GMC is vague at defining what constitutes as ‘in the public interest’ or even ‘serious’ harm, it also been suggested (Dove et al 2019) that this is merely a discretionary matter not a core obligation in the guidelines. And even if discretional judgement is used and deemed to be professionally correct by the GMC a PA may still be concerned as to whether it is legal thus possibly facing legal proceedings.

As such if there was a duty of care owed to relatives of a patient, the established duty to maintain confidentiality of patient information framed as a dual duty to consider the patients relatives, doctors would need to have legal protection that is tied to the professional balancing of care of the patient versus a duty of care to relatives (Dove et al 2019).

For example, this would involve telling ABC that her father’s symptoms (that she was aware of and lead to her mother’s manslaughter) could indicate an inherited tendency that she might want to look into. As such keeping in line with both the EU General Data Protection Regulation (2016/679) and the UK’s Data Protection Act (2018) namely, the information imparted is only that which is necessary for the purpose of informing the relative of their risk.

Within this essay, the importance of confidentiality within a PA - Patient relationship has been explored. Of relevance to the author are the guidelines from the GMC her governing body, in conjunction with NHS guidance as her future employer. An awareness of both Statute and Common Law is also imperative. Whilst current Statutes give clear instruction to the PA as to what is lawful, when breach is considered Common Law will remain the grey area as both medicine and law evolve, arguable not always at the same rate. At the time of writing, ABC’s claim is currently being tried, as such one will need to wait to see if a dual duty of care exists by law at least in the area of genetic medicine which highlights the contentious nature of confidence to one patient only, over the protection and safety of others.

References

1. ABC v St George’s Healthcare NHS Trust, South West London and St George’s Mental Health Trust, Sussex Partnership NHS Foundation Trust (2017) EWCA Civ 336
2. Brazier, M. & Cave, E. Medicine, Patients and the Law. 5th ed. London: Penguin, 2011. Print.
3. Data Protection Act (2018). Retrieved from http://www.legislation.gov.uk/ukpga/2018/12/contents/enacted
4. Dove, S.D., Chico, V., Fay,M., Laurie,G., Lucassen,A.M., Postan, E. (2019) Familial Genetic Risks: how can we better navigate patient confidentiality and appropriate risk disclosure to relatives? Journal of Medical Ethics. 45, 504-507
5. European Convention of Human Rights Act Number 20/2003. Retrieved from https://www.echr.coe.int/Documents/Convention_ENG.pdf
6. General Medical Council. (2018). Confidentiality: Good practice in handling patient information, Working with doctors Working for patients. Retrieved from https://www.gmc-uk.org/-/media/documents/Confidentiality_good_practice_in_handling_patient_information___English_0417.pdf_70080105.pdf
7. Gilbar, R. & Foster, C. (2015) Doctor’s Liability To The Patient’s Relatives In Genetic Medicine. Medical Law Review, 24 (1), 112-123.
8. Health Protection (Notification) Regulations (2010) Retrieved at http://www.legislation.gov.uk/uksi/2010/659/contents/made
9. Herring, J. Medical Law. 5th ed. 2017. Print. Law Express.
10. Hywel Dda University Health Board. (2015). Confidentiality Policy. Retrieved from http://www.wales.nhs.uk/sitesplus/documents/862/Att.3-%20confidentiality%20policy.pdf
11. Human Rights Act 1998 C.42. Retrieved at http://www.legislation.gov.uk/ukpga/1998/42/contents
12. Jones, C. (2003) The Utilitarian Argument for Medical Confidentialty: A pilot study of patients’ views. Journal of Medical Ethics, 29, 348-352.
13. Pattinson, S.D. Medical Law & Ethics. 4th ed. 2014. Print.
14. Public Health (Control of Disease) Act (1984) Retrieved from http://www.legislation.gov.uk/ukpga/1984/22
15. Nixson, W. (2017) Has The Right To Breach Patient Confidentiality Created a Common Law Duty to Warn Genetic Relatives? QUT Law Review, 17 (1), 147-159.
16. Royal College of Physicians, The Royal College of Pathologists, The British society for Human genetics. (2011) Consent and confidentiality in genetic practice: guidance on genetic testing and sharing genetic information. Retrieved from https://www.rcpath.org/uploads/assets/f5c7ddc7-7efd-4987-b6b41ee16577f770/consent-and-confidentiality.pdf
17. Stanton, C. (2018) Patient Information: To Share or Not to Share? Medical Law Review, 26 (2), 328-345.