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Competency 3 – Good clinical care:Understand confidentiality and the principles of consent

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Objective: to develop reflective communication between healthcare professionals, employers and employees

KNOWLEDGE:

Understand confidentiality and the principal of consent.

  1. General Medical Council – Confidentiality [1]
  2. General Medical Council – Consent [2]
  3. BMA – Guidelines on access to medical reports [3]

Almost all medical practice depends on the willingness of patients to disclose personal and often sensitive information to the doctor. Patients have a right to expect that information about them will be held in confidence by their doctors. Confidentiality is central to trust between doctors and patients. Without assurances about confidentiality, patients may be reluctant to give doctors the information they need in order to provide good care.

The duty of confidentiality is owed by all doctors including those involved in occupational health. There is legislation relevant to confidentiality, and it includes the Data Protection Act 1998, and the Human Rights Act 1998, with the common law also having an impact (http://www.opsi.gov.uk/) [4]. If a patient believes their confidence has been broken unlawfully or unethically they may take action against the doctor through the civil courts and or the GMC.

All doctors, regardless of what type of consultation, have general duties imposed on them, and these include

Information given to a doctor in medical confidence can only be disclosed with the patient’s informed consent, unless disclosure is in the greater public interest or via a court order. The GMC has defined consent as:

“An agreement to an action based on knowledge of what the action involves and its likely consequences (GMC Confidentiality, April 2004)”.

In order for any consent to be valid it is important that it is freely given and fully informed. It is not acceptable or ethical to have blanket consent whereby any information given in confidence is divulged to a third party.

The individual should be fully informed about

Consent is required not only for divulging information to third parties, but in many aspects of medical practice including physical examinations, taking blood, radiological procedures, operations and obtaining medical reports.

There are three ways in which consent is obtained

  1. Implied. e.g. if having explained to a patient that a sample of blood is required and what investigation will be carried out, if an individual holds their arm out for blood to be taken, then it is implied that they have consented to this.
  2. Oral: This is provided verbally from the patient, but should be documented in the medical notes.
  3. Written: This is used to demonstrate in the future that the individual agreed to a specified action at a particular time. This includes requests from insurance companies, employers and occupational health professionals and is covered by Access to Medical Report Act 1988 (AMRA)

Consent is a continuous process whereby the individual agrees to a series of actions over time. It should be obtained for each series of actions, as this demonstrates the doctor’s respect for the right of the individual to be fully involved in decisions about their care.

Consent can also be withdrawn at any stage up to the time that the action has taken place. So, for instance an individual who has provided written consent (under AMRA) for a medical report to be provided to his/her employer, can on seeing that report or in discussions with the occupational health physician prior to a report being sent to his/her employer withdraw their consent at that stage.

Consent to an action can not be withdrawn once the action has taken place. So if an individual provided written consent for a report to be provided to his manager by his General Practitioner and choose not to see the report before it was sent to the employer, that individual can not later withdraw consent for the report to be retrieved.

In summary:

  1. All doctors, including occupational physicians are bound by a duty of confidentiality to the patient
  2. Information given to a doctor in medical confidence can only be disclosed with the patient’s consent other than in exceptional circumstances where disclosure is in the greater public interest or a court order is issued.
  3. Access to Medical Reports Act 1988 applies in any instance where a report is being sought from a treating clinician. Individuals signing consent under AMRA have rights which are summarised as follows:

The treating doctor is not obliged to show any parts of the report that he/she believes may cause serious harm to the individual’s mental health or that of others. In such circumstances, the treating doctor will notify the individual that the report will be appropriately limited.

Consent needs to be

[5]