The Government’s anti-radicalisation ‘Prevent’ strategy creates no new responsibilities in relation to the disclosure of information.
Doctors’ legal and professional duties in relation to confidential information – including the discretion to disclose confidential information in the public interest without consent if necessary – remain unchanged.
For our purposes, Section 26 of the Counter-Terrorism and Security Act 2015 places a high-level duty on specified health authorities to have ‘due regard to the need to prevent people from being drawn into terrorism.’ The Act does not confer new functions on any authority, rather it imposes a duty on specified authorities to consider how to prevent people from being drawn into terrorism in the exercise of their ordinary duties. In turn, health staff are placed under a general duty, as part of their ordinary work, to be alert to those who may be vulnerable to being drawn into terrorism and to refer as appropriate.
As the legislation makes clear, the Prevent duty exists in a ‘pre-criminal space’. Its purpose is to identify those at risk of being drawn into terrorism, not to identify those who already present a terrorist threat. For this reason it is best understood as part of adult – and child – safeguarding.
Disclosure of information
As part of the Prevent duty, where health professionals identify individuals who may be at risk of being drawn into terrorism, they will ordinarily refer them to the relevant Prevent lead. As mentioned above, the Counter-Terrorism and Security Act creates no new obligations with regard to disclosure of information. It follows therefore that information must be disclosed in accordance with the law and professional duties.
Confidential patient information can ordinarily be disclosed:
- where it is shared within the healthcare team for the purposes of providing care and treatment to the patient – in these circumstances, consent is understood to be implied
- where the patient explicitly consents to the disclosure
- in the best interests of an adult who lacks the capacity to consent to the disclosure
- where the law requires disclosure (for example under section 38b of the Terrorism Act 2000 all citizens are required to tell the police if they become aware of information relevant to the prevention of a terrorist act or securing the arrest or prosecution of someone involved in terrorism)
- where there is an overriding public interest in disclosure.
Children and young people are owed the same duty of confidentiality as other people. Consent should be sought from children who have the relevant decision-making ability. If a child lacks the ability to make the decision, consent should ordinarily be sought from someone with the relevant parental responsibility.
Disclosure in the public interest
Information can be disclosed, without consent if necessary, where there is an overriding public interest at stake.
Ordinarily disclosure will be justified 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 a serious crime. This would also include those planning or carrying out terrorist activities or those who have carried out such activities in the past.
These duties remain unchanged following Prevent.
BMA views on participation in Prevent training programmes
The BMA’s representative body passed a motion at the Annual Representative Meeting in June 2018 stating that the meeting:
(i) Believes that the Prevent programme leads to racial profiling
(ii) Calls on the BMA to support all members who refuse to take part in the Prevent programme.
By way of background, the Prevent programme forms part of the UK Government’s anti-radicalisation policy, designed to support people at risk of joining extremist groups and carrying out terrorist activities. In practice, it aims for police, doctors, teachers, faith leaders and others in various organisations to refer any suspicions about people who they perceive to be at risk of extremist behaviour to a local Prevent body.
We have received legal advice which makes clear that doctors who refuse to participate in any Prevent training programmes could be penalised or sanctioned with anything up to and including disciplinary proceedings. Given the statutory nature of the Prevent programme, NHS Trusts and other Health Authorities are entitled to reasonably require the assistance of their employees in complying with the obligations specified under the Prevent duty under s. 26 of the Counter-Terrorism and Security Act 2015.
We do not want to place any of our members at risk of disciplinary action from their employers and consequently, we cannot recommend that any members refuse to participate in Prevent training programmes.
Any failure or repeated failure to comply with a ‘reasonable management request’ to provide assistance regarding the obligations imposed under Prevent by participating in the relevant programme run by the relevant Trust or Health Authority, risks employees being threatened with disciplinary action.
Ongoing policy work on Prevent
We believe that the Prevent programme leads to racial profiling and we are conscious of reports from the UN Special Rapporteur on Racism and others indicating that there is no causal link between the Prevent programme’s actions and any change in the level of terrorism or extremism in the UK. No evidence exists to prove that Prevent has prevented extremism, and no government review or findings regarding the impact of the Prevent programme on racial equality in the UK has ever been made public.
We will continue to lobby against the programme on its discriminatory and ethical grounds. We have raised concerns in the past, to the Government’s anti-terrorism czar, about the role of doctors in surveillance under Prevent, but we want to know more about the problems with the current training programme.
If you have evidence of discriminatory or inappropriate aspects of the Prevent training you have received, please get in touch with us through [email protected] so that we can feed these examples into our policy work.
Access more guidance on confidentiality and health records
Read our children and young people ethics guidance
Contact us: [email protected]