Confidentially and the NHS – Your Rights

All members of the NHS are under a duty to keep patient information confidential. This is crucial for patients as they may otherwise be put off seeking medical advice if they believed their personal information would not remain confidential.

Guidelines have been provided by the General Medical Council and the British Medical Association that medical staff must follow to ensure that patient’s information is kept confidential.

The protection of confidentiality is a human right and can be found under the European Convention of Human Rights. There are also statutory obligations that are in place in order to safeguard confidentially in UK law under the Data Protection Act. Despite this, there are situations where a breach of confidentiality does happen.

A patient can of course consent to having their information disclosed. As long as the patient has been well informed and is able to give expressed consent, information can be disclosed. However there are cases where consent has not been obtained but information can still be disclosed.

Public Interest

There are cases where a breach of patient confidentiality may take place when it is in the public’s best interest. In these cases a balance needs to be met of preserving confidentiality and keeping a patient’s information private, or whether it is in the public’s best interest for the information to be disclosed.

This is not a decision that can be taken lightly and must be examined carefully before a decision can be made.

Statutory exceptions

There are statutory exceptions that can permit disclosure of patient information.

The British Medical Association allows information to be disclosed if there is a risk of a serious offence being committed. There are other laws that also allow disclosure of patient information too – under The Data Protection Act, disclosure can take place if it will aid the prosecution and detection of a crime. The Police Crime and Evidence Act allows personal information to be disclosed in an investigation. The courts may also instruct disclosure from a medical expert in order to have them give evidence at a trial.

The Police Crime and Evidence Act allows for information to be disclosed during an investigation in relation to an individual’s mental and physical health. The Data Protection Act allows for information to be disclosed if it will aid in the prosecution or unveiling or a crime.

The Secretary of State has the authority to disclose patient information under the NHS Act providing that it supports NHS activity, and has to be in the patient or the public’s best interest.

Lacking capacity

Some patients may not be able to understand or have the ability at the time to make an informed decision. In cases such as this, the patient may not be able to make a decision for themselves, so the patient’s best interest will be taken into consideration.

The Mental Capacity Act has a presumption of capacity for all patients. However, if patients are unable to understand and use the information provided, and therefore lack the capacity to make an informed decision, they may be deemed incapacitated. Information can be disclosed about an incapacitated person if it’s in their best interest, but this can be open to a wide interpretation.

When it comes it children, if a child is under 16 then he/she it may be able to consent to medical treatment if it is deemed that they have sufficient understanding of what they are consenting to. However, if it is deemed that the child does not understand what they are consenting to, they can be deemed incompetent and have their parents or guardians informed in order to act in the child’s best interest.

It is the same situation if the child refuses medical treatment. If the child is deemed incompetent then the doctor could seek the parent or guardian’s permission in order to make an informed decision.

Disclosure to different health authorities

In cases where a decision needs to be made in relation to patient care, multiple healthcare agencies may need to disclose information to each other. This sharing of information can be permitted by the General Medical Council in cases such as the sharing of information being necessary for patient care.

Disclosure for medical research

Medical research is significant as it relates to the public’s best interest when new treatments and cures can be discovered to improve patient’s health and care.

It does need to be proportionate however. Where a patient consents to disclosing their information for medical research, this may not breach confidentiality. However, in situations where consent cannot be sought, or where disclosure of patient identity would be detrimental to the patient, medical information can be disclosed that would not breach patient confidentiality through the use of anonymity.

Deceased Patients

Even though a patient may be deceased, doctors are required to keep patient medical information confidential in accordance with General Medical Council rules and guidelines.

Personal information can be requested about the deceased individual. If no harm will come to relatives of the individual or the separate body who has requested the information, then it is likely that disclosure of information will be given.

Is there a claim?

It is clear that in some cases a disclosure of patient information is permitted, but this is not always the case. So, unless patient information has been disclosed for one of these reasons, a patient may be entitled to compensation if the patient suffered a detriment due to the breach.

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