Confidentiality: a core feature of general practice (2024)

In the medical press in July 2010, Professors Pattison and Marshall ask Is Confidentiality a Con?¹ and repeatedly state that confidentiality of medical information is now ‘a delusion'. The text makes it clear that Professor Pattison is a Professor of Religion, Ethics and Practice and a member of the RCGP Ethics Committee, and that Martin Marshall is Chairman of the Ethics Committee of the RCGP. It includes a disclaimer ‘that this article does not represent the views of the College or of the Ethics Committee but is intended to provoke discussion'. In view of the high importance of the subject, the danger of patients being misled, and the request for discussion, a response is needed.

THE LAW

This article makes no reference to the law, which provides the framework for medical practice in the UK and which is the starting point for discussion of confidentiality in the modern world. There are many legal aspects. The Data Protection Act² which covers England, Scotland, and Wales, requires all those handling personal information to do so ‘fairly and lawfully'. All general practices need to register under this Act, as the data which practices handle fall within the definition of this Act. ‘Lawfully’ includes acting within the Common Law. It is necessary to distinguish corporate and professional confidentiality.

The common law duty of confidentiality³ applies in all parts of the UK. This provides protection for patients against disclosure of information given to their doctors and nurses. This position is important to all patients and all practising doctors. Patients have rights and while it is obviously for patients to decide how much to tell the doctor, anything that they do decide to say within a medical consultation to a doctor is confidential. The law both protects patients and empowers them. The authors imply that doctors can somehow decide what information to disclose. This is not so.

There are a very small number of exceptions which arise from public interest for example: the statutory notification of a few diseases; the investigation of some serious crimes; and, if Section 251 has been recommended by the Ethics and Confidentiality Committee of the National Information Governance Board, a small number of nationally-approved research studies. All such exceptions put together are still very rare and affect only a tiny number of the over 250 million general practice consultations which take place each year.

Pattison and Marshall¹ write that the present system is ‘leaky and incoherent’ but offer no evidence of this as far as general practice in Britain is concerned. On the contrary, there is widespread trust in doctors who are the most trusted of all professions.⁴

Family doctors are expected to keep confidences and do so. Breaches of confidentiality by GPs and their teams are remarkably rare. Complaints to the NHS or the GMC, or legal action against doctors on the basis of an alleged breach of confidentiality are also extremely rare. GPs and their teams can take great pride that, despite the real and increasing complexities of modern medical practice to which Pattison and Marshall rightly refer, they are still upholding the law, medical ethics, and maintaining the trust of their patients.

The authors make much of the fact that other organisations such as credit agencies, Facebook, and also Tesco now hold much personal data about people. This is true, but is not the point. First, much permission to use financial information has been signed away in writing, for example on mortgage applications, more than people often remember. Facebook use is voluntary. However, the main point is that credit agencies, Facebook, and Tesco do not operate under the same common law duty as medical practice — nor do many of us want to be equated in that way.

The authors are right that in a tiny number of cases, special investigators have lied to and tricked some health staff into letting them have confidential health information. This is not a common problem and such actions are always improper and usually illegal. They form no basis for developing national policy.

PRINCIPLES OF MEDICAL ETHICS

The first ethical principle is to respect the autonomy of the patient. This means informing the patient properly, respecting the patient, and obtaining consent if disclosure of information is contemplated. Every day GPs rightly require the written consent of the patient before completing insurance forms.

Other core principles of medical ethics include non-maleficence (see later) and justice which includes respecting rights, including the Right to Privacy.⁵ Obtaining consent is the usual method of doing this.

POLICY IN THE NHS

In addition to the law and ethical principles, policy in the NHS is important as most general practice takes place in the NHS. The Ministerial Guarantee issued by Government Ministers in the Department of Health and later renamed The NHS Care Record⁶ Guarantee is clear and states that in the NHS ‘… We have a duty to keep records about you confidential …’ and ‘… We will allow only those involved with your care to access your records unless you give your consent'.

PRACTICAL ISSUES

Practical issues are relevant. Asking sensitive questions is a great skill and an integral part of general practice. For example, asking depressed patients if they have ever considered killing themselves is an accepted component of good care but is hardly practical if the doctor is simultaneously telling the patient about the ‘reality of non confidentiality'.

Sensitive questions and answers about sexual activity are also covered by other laws, for example, the Venereal Disease Acts of 1917 and 1974 cover doctors in both general and hospital practice, and require confidentiality. Staff of NHS trusts, including staff of primary care trusts, are also covered by this law. The Human Fertilisation and Embryology Act 2008 also covers some identifiable information.

POTENTIALLY HARMFUL TO PATIENTS

One of the core ethical principles is non-maleficence, that is, not to do harm to patients. This doctor-centred article,¹ published in the medical press from two prestigious authors may mislead and worry patients, especially those who read it via one of the approximately 2000 patient groups now associated with British general practices. Repeatedly stating that they consider confidentiality of information in general practice is now a ‘delusion', may worry the thousands of people who have already disclosed sensitive information to their personal doctors believing it to be in confidence. It may also act to deter other patients from speaking frankly to their doctors.

Patients often come to GPs in distress, and unburdening themselves can be, and often is, therapeutic. This response seeks to support such patients and to assure them that their legal, ethical, and ministerial safeguards remain in place.

WIDER ASPECTS OF CONFIDENTIALITY - HISTORY, INTERNATIONAL, AND COLLEAGUES

Pattison and Marshall write from a narrow viewpoint. They may find it helpful to reflect on the history of medical confidentiality which goes back at least to Hippocrates. A principle which has survived 2000 years and been added to over time by legislation in numerous countries is not to be taken lightly.

Nor is this just a GP or a British issue. The Human Rights Act of 1998 brought into UK law the principles of the European Convention on Human Rights, some of which, such as the Right to Privacy (Article 8) are directly relevant. Confidentiality of medical information is accepted not just across Europe, but around the free world.

Thirdly, the legal and ethical principles on the confidentiality of medical information do not just apply to doctors. They cover nurses, dentists, and all health professionals too. A dentist has been struck off the Dental Register for a breach of confidential medical information.

HUMAN RELATIONSHIPS

Finally, confidentiality is a feature of important human relationships. We confide in family, friends, especially longstanding ones, and trusted professional advisers, especially doctors. The key is trust. Doctors trust patients to tell the truth and patients trust doctors to be competent, and, for example, to prescribe appropriately. Patients take tablets on trust.

Confidentiality is associated with trust in human relationships. In general practice, the development of trust by patients in their doctors has been shown to be associated with continuity of GP care in both the UK and the US.⁷

Pattison and Marshall conclude that ‘widely sharing information may well not damage the patient-doctor relationship. Indeed it should deepen and clarify it.’ I believe the opposite.

If patients cannot trust their personal doctors to keep their confidences, they may not trust them at all.

Notes

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