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Practice dilemma: Breach of patient confidentiality

What action can be taken if an ex-staff member breaches a patient's medical confidentiality? Our legal expert advises

GMC guidance states that doctors responsible for the management of patient records or information should make sure the data is held securely, and any staff you manage understand their responsibilities.

Practices should have a confidentiality clause in their staff contracts, worded to cover employees both during their employment and after they have left the practice. When staff come to the end of their employment at the practice, it is helpful to remind them of their duty to maintain patient confidentiality even after they have left. Most staff follow this as a matter of course, but there can occasionally be problems when staff forget or deliberately breach this duty.

If you are aware of an allegation that an ex-employee has breached patient confidentiality, you should investigate further to establish the facts. If it is clear that a previous employee has breached confidentiality, you should seek appropriate advice.

The first step is likely to be a firmly worded letter from the practice reminding the individual of the confidentiality clause and its extension beyond the end of their employment. The ex-employee should also be informed of their responsibility for any financial damage done to the practice from a breach of the terms of their contract. Such financial loss to the practice may result from a claim for damages against the practice for breach of confidentiality, or a fine from the Information Commissioner's Office as a result of failure to comply with the Data Protection Act 1998. Financial loss through damage to the practice's reputation may also be a consideration but is likely to be very difficult to prove.

If the ex-employee is a professional regulated through a body such as the Nursing and Midwifery Council or the General Medical Council, and the breach appears to be deliberate, then reporting the individual to the relevant body could be considered. If you are aware of ongoing and purposeful breaches of confidentiality by an ex-employee, it is possible for the practice to seek legal advice with view to obtaining an injunction from the court to prevent any further breach.

Dr Bryony Hooper is a medicolegal adviser at the Medical Protection Society

Practice dilemma: Breach of patient confidentiality