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Membership information +44 113 241 0727
Dentolegal advice +44 113 210 4398

A duty to treat …and to tell?

Sarah Whitehouse looks at a doctor’s responsibility to their patients and to society regarding confidentiality

In May 2010, for Jamaican doctors, the events in the Tivoli Gardens area of Kingston brought this dual responsibility to the fore. There would have been much pressure on doctors treating these patients to divulge information to the police. The disclosure of a patient’s personal information may be in the public interest, if it is likely to protect individuals or society from risks of death or serious harm, such as serious communicable diseases or crime, or as a result of gunshot or knife wounds. However, this must be carefully evaluated by the doctor.

Similarly, serious harm to the security of the state or to public order, and crimes that involve substantial financial gain or loss will generally fall into the category of serious crime. But should this extend to passing on information about a patient’s involvement in public disorder? It should if it threatens the public interest, but the ethical shades of grey become even more blurred in instances where the crime cannot immediately be classed as serious.

The wider context is important, as sometimes crimes may be considered as serious where there is a prolonged period of incidents, even though they might not be serious on their own. For example, a patient presents at the emergency department (ED) with unexplained cuts to their hands and wrists. It later emerges that these injuries were sustained whilst looting a shop, as was seen in the commercial district of downtown Kingston during the May 2010 unrest.1 This is, of course, a crime, but is it in the public interest to disclose this confidential patient information? How far should doctors make morally charged decisions about how serious a crime has to be before it is reported?

Disclosure of a patient’s personal information may be in the public interest, if it is likely to protect individuals or society from risks of death or serious harm

Primary duty is to your patients

MPS Senior Medicolegal Adviser Dr Su Jones says: “It is important to remember that a doctor’s primary duty is to their patient. It is helpful to document any decisions and discussions that have taken place. You should document your disclosure.” She adds: “If you are unsure whether or not to share information, seek advice from an experienced colleague, or call MPS for advice.”

Breaking confidentiality in instances where there is not a clear and justified public interest can erode the confidential nature of the doctor–patient relationship. Without confidentiality, patients may be reluctant to seek treatment or disclose their full history or nature of their injuries, which may compromise their health and erode patients’ confidence in the profession.

In addition, it is important to consider the extent of information which is to be disclosed – disclosing demographic data or the fact that someone attended a clinic may be easier to justify than revealing explicit clinical details.

Safeguarding society

Legislation can provide for the obligatory disclosure of information under certain acts; for example, Jamaica’s Child Care and Protection Act 20052 and the Bahamas’ Health Services Act,3 both of which require healthcare practitioners to disclose specific patient information to the authorities under certain respective circumstances.

If you are unsure whether or not to share information, seek advice from an experienced colleague, or call MPS for advice

As healthcare professionals interact with the public on a daily basis, they play a vital role in safeguarding; for example, in reporting child protection issues, spotting domestic abuse, or even spotting the potential for terrorist activity.

In cases of child abuse it is often the doctor or healthcare worker that consistently sees the patient on a regular basis and is able to identify a pattern of abuse. Repeated unexplained injury should alert a doctor to an untoward event. This can be a delicate matter as the parent might be reluctant to disclose information for fear of repercussions.

The UK government’s Prevention of Terrorism Programme, drawn up to help combat home-grown terrorism after the 7/7 London bombings, places particular emphasis on healthcare professionals’ involvement in reporting instances where they suspect a patient may have been drawn into extremist activity.

The strategy states: “Healthcare professionals may meet and treat those who are vulnerable to radicalisation.”4 Those with learning difficulties or mental health problems are, it is argued, more easily drawn into terrorism. For example, Nicky Reilly, who has Asperger’s syndrome, was convicted of trying to blow up a shopping centre in Exeter, in South West England. It is, however, extremely difficult to generalise or pigeonhole. Such monitoring could lead to heightened suspicion for no justifiable reason, leading to a loss of patients’ confidence in doctors, rather than any significantly improved detection of terrorists.

The strategy goes on to explain: “The key challenge for the healthcare sector is to ensure that, where there are signs that someone has been or is being drawn into terrorism, the healthcare worker can interpret these signs correctly, is aware of the support which is available and is confident in referring the person for further support.”5

Looking to the future?

Can doctors really look into the future and say how someone might behave? In the UK, GPs can flag firearms ownership on a patient’s medical records. However, it would be impossible for doctors to predict whether patients who own firearms would harm others in the future.

A British Medical Association spokeswoman said: “We support the policy of flagging firearms ownership on a patient’s medical records. However, the policing of that should not be down to the individual GP. If a doctor did have concerns about a patient who is flagged as having a firearm, then of course they should raise this within the appropriate channels.”

Can doctors really look into the future and say how someone might behave?

It is up to a doctor to use the information they have been given to make a professional judgment on the situation, and whether it is necessary to disclose information within the public interest.

“Recently, a patient told one of my juniors that they had a shotgun at home. The patient had attended with depression and had expressed suicidal intent,” says Dr Jonathan Jones, Emergency Medicine Consultant at Leeds General Infirmary, in the UK. “I actually discussed the situation with a mediocolegal adviser at MPS. Following that discussion, I spoke to the patient and clarified the story – they sometimes borrowed a shotgun their uncle kept in a locked gun cupboard and they had some shotgun cartridges at home. I felt that the situation was low risk and we did not inform the police.”

Making moral judgments

Dr Jonathan Jones adds: “As EM consultants we are expected to make moral judgments on the severity of a crime and when to disclose – and this is tricky. Not so long ago, a nurse found that a patient had a carrier bag full of marijuana plants. The patient had attended with mental health problems and claimed they had found it in a bus stop. The nurse contacted our pharmacist, as is policy when it comes to disposing of illicit substances. Because of the volume of material, she could not use the normal processes for disposing of the material and so the police were called. The police were keen to have the patient’s details. I felt that this did not constitute a serious arrestable offence – they disagreed, arguing that clearly the patient had access to marijuana being grown, which could be classed as intent to supply, meaning it was a more serious offence. I asked them to get written authority and a request for disclosure of personal data from an inspector or above, before I would then consider their request further.”

Professional and personal response

There is, perhaps, a difference between a citizen’s duty and the duty of a medical professional.

Dr Su Jones says: “Always ensure that you can justify your decision to break patient confidentiality. Don’t get caught up in any public frenzy; have a measured, professional response in situations such as large-scale public disorder and rioting. Reflect on whether the disclosure is really in the public interest to avoid a knee-jerk reaction.”

Whilst doctors should not turn a blind eye to petty crime, it is their professional responsibility to disclose onfidential patient information only when there is a serious threat to public safety. Doctors are highly-regarded as upstanding members of society, but ultimately their professional duty has to lie with the individual patient.

UK newspaper The Independent’s Health Editor Jeremy Laurance sums up the debate eloquently: “It is not the medical profession’s responsibility to maintain law and order – its duty is to provide care to those who need it, non-judgmentally, without fear or favour. If doctors lose sight of that, we are doomed.”6

There is, perhaps, a difference between a citizen’s duty and the duty of a medical professional

Case study

Dr S is an Emergency Medicine consultant working the night shift in a busy city centre teaching hospital. A 23-year-old male, Mr N, is brought in to the hospital by paramedics with a gunshot wound to his left leg. He becomes extremely distressed when Dr S begins to take a detailed history.

When Dr S suggests reporting the crime, Mr N becomes very aggressive and starts to threaten Dr S, warning him not to call the police. What should Dr S do?

Doctors have a responsibility to inform the police quickly whenever a person arrives with a gunshot wound or knife injury

Advice

Doctors have a responsibility to inform the police quickly whenever a person arrives with a gunshot wound or knife injury, in order to allow police to make an assessment of the risk to the patient and others and to record the crime for statistical purposes.

However, Dr S should make a professional judgment about whether to disclose Mr N’s name and other personal information. If it is probable that a crime has been committed, and Mr N is unwilling to disclose information or allow doctors to do so, Dr S can speak to the police if the information is required by law, or is in the public interest.

If you decide not to tell the patient about the disclosure as it may put you or others at risk of serious harm, or prejudice the prevention, detection or prosecution of a crime, you must document this decision and be prepared to justify it.

References

  1. Jamaica Observer, May 24 2010
  2. Jamaica, Child Care Protection Act 2004
  3. Bahamas, Health Service Act
  4. HM Government, Prevent strategy p83, 2011
  5. ibid
  6. Laurance J, Medical life: Patients’ trust must not be betrayed in the wake of the riots, The Independent, 23 August 2011