SIGN UP

Medical Records And The Law

Avatar Image
cameronmorgan187 | 08:31 Thu 19th Jun 2014 | Criminal
19 Answers
Last year, as part of my research I asked a question on this forum about Medical Records and the Police, I got some really helpful answer. Sorry but I have another related question.

From my previous question I understand that "There is no statute law that requires provision of confidential information to the police or to courts, even where the matter in issue is a serious crime."

When I qualify and start practicing, whether within the NHS or privately, I want to know that what patients say to me is confidential, regardless of the law.
After carrying out further research into this subject I was interested and disappointed to read about this case:

http://www.familylawweek.co.uk/site.aspx?i=ed2087

I think the application for disclosure was handled incredibly carelessly, but nevertheless, disclosure was allowed.

In contradiction to the outcome of the review, the article referred to a quote by Baroness Hale, she said:

"It has always been accepted that information about a person's health and treatment for ill health is both private and confidential. This stems not only from the confidentiality of the doctor-patient relationship but from the nature of the information itself. It is crucial not only to respect the sense of privacy of the patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community."

They even quote Article 8 of the Human Rights Act:

"Everyone has the right to respect for his private and family life, his home and his correspondence"

So my question is a simple one, are medical, hospital or psychiatric records entirely confidential? It seems that if you push hard enough, you can get in.

Answers

1 to 19 of 19rss feed

Best Answer

No best answer has yet been selected by cameronmorgan187. Once a best answer has been selected, it will be shown here.

For more on marking an answer as the "Best Answer", please visit our FAQ.
well this paragraph seems to answer your question
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
the review seems to me to be regarding how the thing was handled and not the disclosure itself.
i used to work as a clinician in the nhs. i was bound by stringent confidentiality rules which i upheld as stringently BUT i dont believe that confidentiality can or should be upheld in all circumstances. my professional organisation and most if not all others say something like confidentiality can and must be breached if the patient reports that they have committed a serious crime or you see or hear something that makes you believe that they have or they will do so, also breach is expected if you uncover evidence of abuse. the breach is done in a controlled way and if its safe or possible to do so, you must inform the person concerned before doing so.
Question Author
Hi WoofGang, the reason for asking this question (again) is that it all seems rather contradictory, there isn't a finite answer, and in my opinion there should be, this is personal, confidential information. I know that all of this boils down to they way our legal system works, one rule contradicting another rule. My interpretation of this is "Your records are confidential unless......"

For me, what Baroness Hale says is stop on. "Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment"

In the case of "TB", to think that a lawyer/barrister can just apply to the court in order to view a persons medical records to try and discredit them is wrong, even if it is in the interest of justice.

yup, your interpretation of "Your records are confidential unless" seems not only factually correct to me but also absolutely right and just.

If you want to know that what a patient says to you is absolutely confidential regardless of circumstance then don't practice in the uk and certainly not within the NHS. If your chosen profession is governed by a professional body, membership of which is required in order to practice in the Uk then again don't bother because so far as I know, as I have said, all of them have a requirement to report matters told to you by a patient under certain circumstances.
Um....you have asked the same question ( twice ) and wonder if the answer will be different.

not really

Fred has gone... but it has always been the case that records are confidential unless their release is ordered by a judge.
And that is the case now xc there are statutory conditions - which I still think are stab wounds, gun shots and terrorism.

so are 'records entirely confidential' ? Nope we said no first time round and we are saying no this time as well.

I agree with woofgang. I don't work in the NHS, but in care, which is extremely strict on confidentiality- but there are exceptions. If you suspect abuse, crime, somebody endangering themselves or someone else- we tell clients, whether adults or children, we might need to disclose information.
On a personal level, true confidentiality seems rare. You can disclose information on a need-to-know basis anyway. I can give information to somebody's GP in their interests.
I have also noticed that i can ring anybody - hospital, GP, psychiatrist, bank, social services, etc and if i say i am their carer, they will tell me anything and everything. Shocking, but true.
Question Author
Hi Peter,

I totally understand about the stab wound, gun shot, terrorism issue, of course there is a duty to disclose.

This quote formed part of my first answer:

"There is no statute law that requires provision of confidential information to the police or to courts, even where the matter in issue is a serious crime." That is a very bold statement.

It's the court order issue that concerns me a little. If a judge orders the release of what could be very highly sensitive material, what medical know-how do defense or prosecution teams have to turn it into submissible evidence.

When I first started my course, I naturally or naively assumed the medical confidentiality was a guarantee. I've always understood the need for disclosure, it would be unprofessional and unethical for me not to, its the "let's get a court order and take a look at someone's most personal information and see if there's anything we can use" rule that seems unfair. I know it's not that simple, but on reading that case I highlighted, it did seem to be.


No it didn't seem to be a fishing exercise. I agree that this is a very hard case (vulnerable child, allegation of sexual abuse) and the adage "hard cases make bad law" seems particularly appropriate here. The judgement given in this case was not that the medical records should not have been provided, but for the way in which the case was handled ie no representation of the accuser, no opportunity for the accuser to argue why the records should not be released.
The accuser's prior history of self harm and other mental health issues was already known, the medical records would only have provided additional detail and confirmation OR OTHERWISE.

Like PP I am not really sure what you want? ....and yes an assumption that medical confidentiality is always guaranteed regardless of circumstances is naive.
Legal teams may or may not have specialist medical knowledge. Where they don't then they purchase it, also the services of expert witnesses. If the attempted to make arguments in court from their own non expert knowledge, they won't get far!

but again? what is it that you want?
Question Author
I suppose at the end of the day, I want to help people, that's why I'm training to be a Psychologist, and like Baroness Hale said, "Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment", and in my chosen area of work, this is incredibility important. People need to be able to trust me.

Don't get me wrong, I totally understand the need for disclosure, I always have, but I do feel that something as confidential as the many types of medical records, there needs be greater protection.

Thank you, it's been really useful to bounce this stuff around and being able to point me in different directions regarding this.

Question Author
Thanks WoofGang, your points and knowledge are appreciated. I agree with you, I agree with you, I was naive. When I chose to dig a little deeper into medical confidentiality I opened a massive can of worms. Not as clear cut as I thought it was.

Thanks
errm.....you don't have to dig that deep. So far as i know, confidentiality, ethics and law are covered pretty early in most health care provider courses.
Question Author
I have covered the General Medical Council's rules on confidentiality and disclosure:

http://www.gmc-uk.org/guidance/ethical_guidance/confidentiality_17_23_disclosures_required_by_law.asp

and

http://www.gmc-uk.org/guidance/ethical_guidance/confidentiality.asp

but then, and I'm sorry for repeating myself, you read:

"There is no statute law that requires provision of confidential information to the police or to courts, even where the matter in issue is a serious crime.", you also read the medical records along with other information gained in confidence is classed as "excluded material" by legislation.

Also, in the case I highlighted, the judge says the it's the patient that holds the confidentiality.

Sorry for going round it circles, but as I said earlier, the whole area is contradictory.

Thanks

Cameron
They're not GMC 'rules'. Please note the word 'guidance'
nope, not contradictory at all IMO.
There are three points to hold on to.
1. The clinicians duty of confidentiality and when and how it must be broken.
2. The "confidential unless" clause which i quoted at 09.36 on June 19th
3. Yes the patient "owns" the confidentiality...although NOT, in fact the medical notes themselves. This however is only about who gives permission for disclosure or not and who should be informed of the judge's decision to require disclosure.

In the case you quote, and from what you posted, I suspect that disclosure would still have been the end result if the proper procedures had been followed, given the seriousness of the allegation and the history of the alleged victim.

But again I ask what is your objective for posting on here?

and once again, to answer your question

"Are medical, hospital or psychiatric records entirely confidential?"

No. Of course not.
The GMC stuff seems clear enough too and in line with what is required by other health care provider governing bodies.
um The GMC 'guidance' are rules that they use to regulate but one part of the health care circus - namely the doctors. They take care of course that their guidance is consistent with English Law. They say somewhere they arent statements of English Law and of course take it further ( not unlawful to sleep with someone not your wife but Goodness ! the GMC wont like it if she is also your patient )

I have just gone thro the GMC general guidance and their special stuff on Confidentiality - called confidentiality I think and not much of it is unclear.

You must keep your patients' information confidential unless ordered to release by a judge ( or someone else acting with statutory authority see stab et c etc )

We have previously grouped Police and Courts together, which is unhelpful,

Think about what you wanna ask, and we will try to answer.
Are you perhaps under a misimpression, that if there isnt a statute saying Do this ! then a judge can't order it ?
Oh yes they can under something called common law
Try the Law Society's advice to lawyers about their own confidentiality.

http://www.lawsociety.org.uk/advice/practice-notes/anti-terrorism/

I am not sure if you quote is correct:
about no statute requiring info

I think if you went back to the speaker they would say oh we were nt talking about terrorisim....

but the advice from the lawyers to lawyers makes it very clear that the info is confidential unless subject to a court order....
Question Author
Thanks guys, I know we are going round in circles and I apologise. My research into patient confidentiality has taken me down many different routes.

I suppose my main reason for asking the question again was after reading about the case I attached to this post, I hope that a great deal of care is taken by the legal system (Judges/Court Orders) when issuing Courts Orders for disclosure.

Thank you again.
I hope that judges and court officials take a great deal of care ALL the time.
Question Author
Woofgang - exactly!

1 to 19 of 19rss feed

Do you know the answer?

Medical Records And The Law

Answer Question >>