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Can we be forced to disclose data?

Q - We were asked to provide data about prescriptions supplied to one of our patients, without the patient's consent, as part of a prescription fraud inquiry. We were told this was permitted under section 29 of the Data Protection Act. I contacted my medical defence organisation and it was not happy that we should disclose the data, which has triggered an even more insistent demand for the information. What advice can you give?

A - There is no legal requirement to disclose confidential personal data without consent ­ to do so could potentially put the GP in breach of the Human Rights Act, the common law on confidentiality and the professional obligation of maintaining patient confidentiality.

Confidential medical data may generally only be divulged without consent if there is a risk of serious harm to the patient, or to another person, or if it is overwhelmingly in the public interest. The BMA ethics department and the GMC both support this view. The GMC believes the public interest argument would apply in serious cases, such as serious crimes against the person, but not in cases of possible prescription fraud.

The legal department of the BMA takes the view that the detection of fraud would be 'in the interest of justice' and that it would therefore probably be permissible to disclose data without consent in this situation.

The Information Commissioner has confirmed this is a 'grey area' but that disclosure without consent would 'probably be permissible' under data protection law.

The Pharmacy Reward Scheme was introduced in June 1999 and is one of the measures that has contributed to a reduction in prescription fraud from £117 million to £69 million. This cost saving in the NHS is substantially in the public interest, but must be weighed carefully against the unjustifiable disclosure of sensitive personal data and the erosion of doctor/patient confidentiality.

The Government recently announced that pharmacists would receive an increased reward of £70 for reporting suspected cases of fraud. It is likely therefore that there will be increasing demands to reveal this kind of information. (The probity of disclosure of confidential data by pharmacists in return for a cash reward appears questionable, but this is outside the scope of this reply.)

The fraud investigator should be asked to put any request in writing, with the reasons for disclosure and the legal arguments to justify disclosure without consent. This would assist you if an unauthorised disclosure were to be challenged at a later date. Only the minimum data that would serve the purpose may be disclosed in this situation.

However, if you do not believe there is a clear-cut justification for disclosure without consent, you could seek the patient's valid explicit consent to disclosure, or alternatively ask the investigator to obtain a court order requiring you to disclose the data without consent.

Case law has not yet been established in this area and there remains the potential for a legal challenge to unauthorised disclosure. For this reason you should always seek and follow the specific advice of your medical defence organisation in this situation.

The Information Commissioner has confirmed this is a 'grey area' but that disclosure without consent would 'probably be permissible' under data protection law.

The Pharmacy Reward Scheme was introduced in June 1999 and is one of the measures that has contributed to a reduction in prescription fraud from £117 million to £69 million. This cost saving in the NHS is substantially in the public interest, but must be weighed carefully against the unjustifiable disclosure of sensitive personal data and the erosion of doctor/patient confidentiality.

The Government recently announced that pharmacists would receive an increased reward of £70 for reporting suspected cases of fraud. It is likely therefore that there will be increasing demands to reveal this kind of information. (The probity of disclosure of confidential data by pharmacists in return for a cash reward appears questionable, but this is outside the scope of this reply.)

The fraud investigator should be asked to put any request in writing, with the reasons for disclosure and the legal arguments to justify disclosure without consent. This would assist you if an unauthorised disclosure were to be challenged at a later date. Only the minimum data that would serve the purpose may be disclosed in this situation.

However, if you do not believe there is a clear-cut justification for disclosure without consent, you could seek the patient's valid explicit consent to disclosure, or alternatively ask the investigator to obtain a court order requiring you to disclose the data without consent.

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