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Conflicts in confidentiality

Dr David Molyneux on when to break and when to keep patient confidentiality

Confidentiality, like consent,

is a common issue in general practice. Most doctors recognise a moral need to protect confidentiality, but dilemmas can occur. One problem is when the need to protect confidentiality comes into conflict with other important ethical issues. For example, the need to protect others (particularly children) and the rights of others to have information about individuals in their care.

Take the case of a pregnant 14-year-old who claims her father has sexually abused her and that her 12-year-old sister may be at risk.

She believes she has a right to confidentiality in all situations, whereas the doctor feels that sexual abuse must be reported to social services.

Why does confidentiality matter?

Confidentiality is important for four reasons:

lAutonomy Respecting confidentiality involves respecting the autonomy of the patient. Autonomy is ethically important, and is a cornerstone of medical ethics.

lPrivacy Respecting confidentiality means protecting the patient's privacy.

lTrust Consultations would soon become dysfunctional if the patient could not rely on the doctor to respect their confidentiality. Patients would not reveal anything embarrassing or intimate.

lPromise keeping There is an implicit and sometimes explicit duty of promise-keeping between doctor and patient, which includes the promise 'I will keep your secrets'.

The 14-year-old referred to above is fully autonomous because she can make informed decisions and has the same right to have her confidences respected as an adult.

She deserves respect for her privacy, and will expect from the doctor an implicit promise to keep secrets. Perhaps most important of all, she would not come to you if she expected her confidentiality to be immediately broken by you contacting her parents.

The next obvious question is: 'Can confidentiality ever be broken?' If this question was put to a Catholic priest, the answer would be a resounding No. For the doctor the answer is an equally definite Yes.

Confidentiality is therefore not an absolute moral rule. The BMA, the GMC and the courts accept there are some situations where doctors may break confidentiality, and some where they should break confidentiality.

The GP confronted with the pregnant 14-year-old claiming abuse has two opportunities to break confidentiality. The first is to tell the girl's parents about the pregnancy. We know for sure the girl did not give consent, in fact the opposite is true.

We know from the Gillick case that the courts are very comfortable with children not telling their parents if they understand the implications of this act. The one argument for telling her parents (and it is not a strong argument) is that they cannot look after the child properly without full information.

The second opportunity is where the girl reveals who made her pregnant. Interestingly, the girl still autonomously wants you to keep this information confidential. Is she any less autonomous this time? Possibly: she may be frightened or infatuated, but the key issue is that her 12-year-old sister may be at risk. The risk to the third party trumps the duty to respect confidentiality. As the GMC states: 'A doctor who decides to disclose confidential information about an individual must be prepared to explain and justify that decision.'

Legal aspects

Prosecution for breach of confidentiality would usually occur as an action in negligence. The defendant would have to show there was:

la duty of care

lthis duty was deficient

lthat harm came from this neglect of duty (which was of a sort that would be compensated).

It is difficult to bring actions for breach of confidentiality, usually the only harm is loss of dignity and embarrassment, and these cannot be quantified in compensation terms.

Furthermore, if an action is taken in negligence, the Bolam rule would hold. The defendant would have to show the standard of confidentiality fell below the standard of an equivalent body of medical opinion. This is hard to do. In practice, most actions against GPs over negligence are taken to the GMC, which takes a firm line on these matters.

lWhen the patient consents.

lWhen the patient is unable to give consent (eg, if unconscious) and it is in the patient's best interests

(eg, to inform a relative, close friend or solicitor). Usually this is to ascertain the patient's wishes for their future management.

lOn a need-to-know basis (eg, when referring to a specialist).

lWhen the court compels you.

lWhen there is a statutory duty to break confidentiality (eg, infectious disease notification, death certification, termination of pregnancy).

lWhen there is a substantial risk to others (eg, driving and epilepsy, possible child abuse, sexually transmitted diseases, serious police investigations). Note: there is no absolute right for the police to ask for confidential information, except when there is a serious risk to others. Disclosure should be made to a senior officer. Exemptions to this rule are the 1988 Road Traffic Act and the Prevention of Terrorism Act.

What is

confidentiality?

A owes a duty of confidentiality to B if:

lB discloses to A information which B regards as confidential

and

lA promises (implicitly or explicitly) not to divulge it to anyone who does not already possess it

Breaking confidentiality

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