Consent and ethics: children and young people

The principle of confidentiality underpins and forms the basis of the healthcare professional-patient relationship. Patients must be able to expect that information that they share with healthcare professionals will be held in confidence and not shared without their consent. Where a patient is deemed to have decision making capacity, doctors have no legal authority to make best interest decisions on their behalf. This applies equally to decisions around both treatment plans and the sharing of information about the patient. Whenever a healthcare professional seeks to share information about a patient, consent to do so from that patient should be sought in the first instance.

The GMC has published new guidance on good practice in handling patient information in 2017. This contains important guidance on handling concerns about reporting patient’s fitness to drive, communicable disease and how to handle disclosure of information in the context of teaching and training.

When is it appropriate to breach confidentiality in the patient with capacity?

Patient confidentiality is not absolute and may be breached under certain legal statutes, where there is a public interest or court order. This does not extend to requests from insurance companies. A disclosure in the public interest is likely to be justified where it is essential to prevent a serious and imminent risk to public health, national security, to protect other people from risks of serious harm or death, or to prevent or detect serious crime. Other people here may include, for example, children in the house who may be at risk of serious harm (please see the Child Protection and Safeguarding section and the Adult Safeguarding section). Even in these instances the breach must be proportionate and must only disclose as much information as to ensure the public safety and only be released to the appropriate authorities.

Occasionally there may arise a situation where a patient has decision making capacity, but is in a vulnerable situation and is being coerced in a way which prevents them from making a free decision about their care or the disclosure of information (domestic abuse may fall into this category). A breach of confidentiality here falls out with the remit of the public interest. The basic stance in these cases must be that competent adults must be free to make decisions about how they manage their own risks. A refusal of disclosure by a patient should not result in them being abandoned by services. Care and support should continue to be offered. Where health professionals have serious concerns about whether a vulnerable but competent adult is being coerced into a decision they should consider taking legal advice about approaching the courts (please see the Adult Safeguarding section).

Breaching confidentiality in the patient without capacity

Where adults lack the capacity to make a decision about whether or not to disclose information relating to harm or abuse, decisions need to be made on their behalf. Decisions can either be made by an attorney acting under a health and welfare lasting power of attorney, or, in the absence of an attorney, relevant health professionals can make a decision based upon an assessment of the individual's 'best interests.' Although the past and present wishes of an incapacitated adult need to be taken into account when making a best interests assessment, they are not necessarily determinative. The decision needs to be made on the basis of the individual's current circumstances and needs and must not only address medical factors but the wider social, psychological and spiritual needs of the patient.

Below are some useful links and resources upon which the above is based and explore the issues surrounding confidentiality in more detail:

• British Medical Association (BMA) – Access to health records
• General Medical Council (GMC) – Confidentiality guidance
• Blightman K, Griffiths SE, Danbury C. Patient confidentiality: when can a breach be justified? CEACCP 2014;14(2):52–56
• Social Care Institute for Excellence – Sharing information and the CARE Act
• Medical Defence Union (MDU) – Safeguarding and vulnerable adults
• BMA – Vulnerable adults and confidentiality
• Social Care Institute for Excellence - The Mental Capacity Act (2005) at a glance
• Department of Health – Confidentiality: NHS Code of Practice
• NHS Digital – A guide to confidentiality in health and social care
• HM Government – Health and Social Care Act 2012

Raising concerns about poor care

The Care Quality Commission (CQC) defines this within health and social care as the following:

"Someone directly employed by a registered provider, or someone providing a service for the provider, reports concerns where there is harm, or the risk of harm, to people, or possible criminal activity."

and

"The management have not dealt with those concerns by discussing them or by using the employer’s own whistleblowing policy, or the worker does not feel confident that the management will deal with those concerns properly and contacts a ‘prescribed body’, such as a regulator instead."

Anaesthetists like other health professionals have a duty to raise questions about quality of care within an institution and if they believe these have not been dealt with to a satisfactory standard or within a timely manner take their concerns further.

Further references which may be of assistance are listed below:

• The Care Quality Commission (CQC) – raising a concern with the CQC about poor healthcare
• The King's Fund (2014) – exploring the CQC's well-led domain – how can boards ensure a positive culture?
• The King's Fund – The Francis Inquiry Report 
• Social Care Institute for Excellence

Healthcare Safety Investigation Branch (HSIB)

HSIB has been operating from April 2016 [previously known as The Independent Patient Safety Investigation Service (IPSIS)] and offers support and guidance to health and care provider organisations on investigations into serious patient safety incidents, and carries out certain investigations itself. Please click here for more information.