A police officer arrives at your practice requiring urgent access to your patient records. There has been a violent rape in the area. The assailant had certain features that may make him identifiable from a medical record. What do you do?
What makes this an ethical dilemma?
Doctors owe a duty of confidentiality to their patients. Ordinarily, identifiable information should not be disclosed without the consent of the patient. In this instance it would be entirely unrealistic to seek consent from all the patients on your list. The prosecution and prevention of serious crime however is clearly an important good. A dilemma arises – or appears to arise – because the duty of confidentiality may be in conflict with the obligation to assist in the prosecution of a serious crime.
What factors should we take into consideration?
- The duty of confidentiality is not absolute. It can be set to one side where the patient consents to a disclosure, where it is necessary in the public interest or where there is a court order or other lawful justification.
- Information can be disclosed in the public interest where it is necessary to prevent a serious and imminent threat to public health, national security, the life of the individual or a third party, or to prevent or detect serious crime.
What more do we need to know about public interest justifications?
We have seen that it may be possible to disclose information without consent in the public interest. Before we consider whether to proceed, we need to find out a little more about public interest disclosures.
Necessary and proportionate
A public interest justification does not remove duties of confidentiality, rather it permits them to be set (to some extent) temporarily to one side. Because these duties remain active, they impose limits on the scope of public interest disclosures. If a disclosure becomes necessary then the duty of confidentiality has to be respected to the extent compatible with achieving that purpose. Any disclosure therefore has to be both necessary and proportionate. Anyone considering a public interest disclosure must therefore have a reasonable belief that it will achieve its purpose and disclose only so much information as is necessary to achieve it.
What should the GP do?
It is certainly possible that you would be justified in disclosing information here. The request for access to all the records is disproportionate – given that the assailant was male, what use for example could the police have for access to the records of female patients? The criteria should certainly be narrowed – and if it becomes narrow enough it may be possible to seek consent, although information can be disclosed in the public interest even if the individual refuses. Consent should not be sought though if it were likely to prejudice the investigation. If there is time it may be possible to request that the police seek a court order justifying disclosure.