Confidentiality is central to medical care. Patients have a right to expect that the information they provide during a consultation is retained confidentially and not shared with other parties. However, there are situations in which confidentiality can be breached with legitimate justification. The GMC provides detailed guidance on this matter in their document ‘Confidentiality’.
In brief, information should only be shared outside of a consultation in the following circumstances:
- Where a patient has provided consent for disclosure.
- If a legal process requires disclosure (normally via a court order).
- If the doctor considers it is more in the public interest to share information than to keep it
Difficulties can arise when a request comes from the police to share information from the medical record. A GP should always be seen to be cooperating with a police request for disclosure of the records, whilst at the same time they must be mindful of their obligations in relation to patient confidentiality. However, it may be difficult for a doctor to understand if the request is underscored by a legal process requiring them to provide information and it may also be difficult to understand whether sharing the information should occur in the public interest.
A police request for information is usually accompanied by information relating to the Data Protection Act 2018. This usually quotes the following exemption:
2(1)The listed GDPR provisions and Article 34(1) and (4) of the GDPR (communication of personal data breach to the data subject) do not apply to personal data processed for any of the following purposes—
- the prevention or detection of crime,
- the apprehension or prosecution of offenders, or#
- the assessment or collection of a tax or duty or an imposition of a similar nature,
The full wording of this exemption can be found in the legislation. The mention of the Data Protection Act and the prevention and detection of crime can lead a doctor to believe they are required to disclose
information to the police.
However, it is important to recognise that the Data Protection Act does not require a doctor to disclose information but simply enables a doctor to legally disclose information without consent if they consider it is appropriate to do so.
Therefore prior to providing any information to the police a doctor is required to make a clinical judgement on the merit of doing so. This decision may be based on a number of factors such as:
- Is it possible/reasonable/practicable for consent to be sought from the patient?
- What information have the police requested?
- What charge are the police considering?
- What difference the information from the medical record may make to the police investigation?
- Can the information be obtained by the police in any other way?
The police may be reluctant to share information but it is important for a doctor to recognise that they
have an obligation to have a clear understanding of why information is required by the police to assist
them to make a decision on disclosure. If the police do not provide sufficient information to assist the
decision making in relation to disclosure, no information should be provided to the police.
In all situations a judgement is required to be made in relation to disclosure and clear documentation
should be kept in relation to the information provided and decision made. This should be documented and retained confidentially but separate to the medical record. In any situation where a decision is made to disclose information the minimum information possible should be disclosed. It would be extremely unusual to give the police access to an entire medical record and in the majority of circumstances limited disclosure only would be appropriate.
A Court Order request for information is different to a request from the police or from a solicitor. A sealed order from the court requires disclosure or you can face a charge of contempt of court. However, prior to providing such information the doctor should content themselves regarding the validity of the order, what information is required and who the information is to be disclosed to. This may require direct communication with the Court.
If you have concerns in relation to providing disclosure to a police request you may wish to contact your
medical defence organisation or Londonwide LMCs’ GP Support team for further assistance.