about the disclosure, or check that they have already received information about it, the
information should also be anonymous where unidentifiable data will serve the
purpose. The disclosure should be kept to the minimum necessary and no unnecessary
information should be given.
When a nurse is responsible for confidential information about patients they should
make sure that it is protected against improper disclosure at all times.
Most improper disclosures are unintentional, therefore it should be made sure that
patient information is not discussed where it can be overheard. Patients’ records
should not be left where they can be seen by other patients, unauthorised health care
staff or by any of the public.
Nurses are obliged in both law and professional practice to keep patients
confidentiality; however, this is not regarded as an absolute as there are some
situations where nurses may legitimately break confidence. Also in addition, the nurse
may be required to break confidentiality by court order or by specific statutory
provision. All of these issues which allow information to be disclosed are identified in
more detail below.
The consent of a patient is a major exception to the duty of confidentiality. It is in the
patient’s power to authorise disclosures to be made. Notification of relatives and
spouses, and provision of information to a solicitor or to an insurance company are all
legitimate disclosures with the consent of the patient. Bridgit Dimond states in her
book ‘Legal aspects of nursing’ that ‘if the patient is unconscious and an adult, the
consent of the relatives is often used to justify disclosure on behalf of the patient.’
Even though this is accepted it is not justified by the law, unless the patient has
appointed that relative with that duty.
Disclosure is lawful and complies with professional ethical codes if the patient has
given consent to the information being passed on. Such consent should be freely
given, but as commented on by Mason and McCall (1999) this is not always the case.
‘What patient at a teaching hospital out-patients department is likely to refuse when
the consultant asks “You don’t mind these young nurses being present do you?”- The
pressures of this situation are virtually irresistible and truly autonomous consent is
impossible. In situations like this the above question of “you don’t mind do you?” is
rhetorical and asked in front of the students which makes it difficult for the patient to
refuse. In circumstances like this the patient should be asked without the pressure of
the students’ presence and the doctor or nurse should ask the question without
assuming that the patient is comfortable with the situation.
Problems can often arise in the care of the elderly where sometimes the patient may
request to the nurses that the relatives should not be told about their condition. The
principles of confidentiality does give the patient right to refuse for their information
to be passed on; however, if the patient was to be eventually cared for by the relatives
then there may be some relevant information that would need to be disclosed for the
patients’ safety.
There are some cases where the press may be involved with the health of a patient and
in this case exactly the same principles apply. If the patient gives consent then the
information can be disclosed but if the patient refuses then nothing should be
disclosed. If the patient was to be unconscious then confidentiality should be
respected.
It states in the Royal College of Nursing (2003) that ‘if confidentiality is broken an
individual can sue through a civil court.’ The patient can also complain to the
information commissioner if there is a breach of the 1998 Data Protection Act. More
detailed information on this act will be given further on in this essay.
Disclosure of information is sometimes required in the interest of the patient. This
reason for disclosure between professionals caring for the patient is justified on the
basis that if the information obtained by the nurse is not passed on to other health
professionals, then the patient may suffer.
An example of where disclosure needs to take place is between the nurse and the
pharmacist. The pharmacist needs to be informed of the patient’s history of allergy to
certain medication, if neither of these professionals were informed of the known
allergies or were not allowed to see the patient’s records then they would be unable to
ensure that the patient is being given the appropriate medication.
Information must be disclosed if it is ordered to do so by a judge or presiding officer
of a court. It can be objected if the nurse believes that the irrelevant not needed for the
proceedings are being asked for.
Disclosures may also need to be made to statutory regulatory bodies. Patient records
or other patient information may be needed by a statutory regulatory body for
investigation into a health professional’s fitness to practice. The patients consent must
be gained before any identifiable information is given. If a patient was to withhold
consent or if it is not practicable to seek their consent, then the General Medical
Council should be contacted, which will result in advice being provided on whether
the disclosure of identifiable information would be justified in the public interest or
for the protection of other patients’.
Whatever the views of the patient, there are certain circumstances in which disclosure
of otherwise confidential information must be made by the law. There are a number of
provisions which can be a cause for disclosing such information. One of these
provisions is the Road Traffic Act 1988 which was the amended by the Traffic Act
1991. This act requires any person to give information to the police relating to a road
traffic accident involving personal injuries.
The Prevention of Terrorism Act 1993 also makes it an offence for any person who
has information, which is believed to be of material assistance in preventing an act of
terrorism. This act applies to nurses in accident and emergency departments as if they
expect any wounds to be the result of a terrorist act then they should disclose that
information to the appropriate people.
Another act is the Public Health (control of disease) Act 1984 which requires a
medical practitioner attending a patient who appears to be suffering from a serious
disease to report it to the medical officer of the area with the name and whereabouts
of the patient and the disease that they have.
The abortion act 1967 requires doctors to inform the chief medical officer of the
department of health of detailed information regarding the termination of the
pregnancy.
All of the above acts are some of the main provisions which can give a reason for the
disclosure of confidential information.
Personal information may be disclosed in the public interest, without the patients’
consent, and in exceptional cases where the patient may even have been asked to give
consent but has refused. This is usually the case when the benefits to an individual or
to society outweigh the public and the patient’s interest in keeping the information
confidential. In all cases where it is thought necessary to disclose information without
consent form the patient, the possible harm to both the patient and the overall trust
between the nurse and the patient must be weighed against the benefits which are
likely to result from the release of the information. The patient should still always be
informed that a disclosure will be made. The nurse must make sure that all steps taken
to seek or obtain consent along with reasons for disclosing without consent are
documented in the patient’s notes.
Disclosure of confidential information without consent can be justified in the public
interest where failure to do so may expose the patient or others to risk of death or
serious harm.
Nurses are given some guidance as to circumstances that may justify disclosure in the
public interest by the UKCC (1996) in its document Guidelines for Professional
Practice. This states that, ‘ the public interest means the interests of an individual, or
groups of individuals or of society as a whole, and would, for example, cover matters
such as serious crime, child abuse, drug trafficking or other activities which place
others at serious risk.’
What if a patient who is diagnosed as HIV positive refuses to tell his wife? Should the
nurse inform the man’s wife? The man may not want to tell his wife, frightened that
his marriage would break up as a consequence. In cases such as this example,
guidelines from the General Medical Council can be used, related to such situations it
does state that ‘disclosure may be justifiable if there is a serious and identifiable risk
to a specific individual.’ (GMC, 1995).
Where the patient or others are exposed to a risk so serious that it outweighs the
patients’ confidentiality interest, the nurse should seek consent to disclosure, but if it
is not practicable then the information should be disclosed promptly to the appropriate
person.
Problems can arise when caring for patients who lack the capacity to provide consent
to disclosure of information. If the nurse is asked by such patients not to disclose
information about their condition or treatment to anyone else, then they should try as
best as is possible to make them understand that by allowing them to tell the
appropriate persons the patient can receive a better degree of care. If the patient
refuses yet the nurse feels that it is essential in their medical interests then relevant
information may be disclosed to an appropriate person.
If a nurse believes that a patient is a victim of neglect or physical abuse and that the
patient cannot give or withhold consent to disclosure, then they should give them that
information immediately to the appropriate people, where it is believed that the
disclosure is in the patient’s best interests. If there are reasons why the nurse does not
believe it to be in the best interests of an abused or neglected patient, then the nurse
should discuss those issues with another experienced professional. Other issues can
arise from these actions as if it is not decided to disclose the information then the
nurse needs to be able to justify her actions. The need to maintain controls over
disclosure of computerised records has been developed with the Caldicott Review and
subsequent development.
The Caldicott Committee was established in order to undertake a review of the uses of
patient identifiable information that flows from the NHS organisations to the NHS
and other bodies for purposes not including direct care or medical research, or where
there is statutory requirement for information (Caldicott, 1997).
The findings of patient confidentiality were commissioned and its findings were
published as the Caldicott Report in December 1997. It made sixteen
recommendations and formulated six principles. These principles are 1) formal
justification of purpose 2) information transferred only when absolutely necessary 3)
only the minimum required 4) need to know access controls 5) all to understand their
responsibilities 6) comply with and understand the law. Since the Caldicott Report in
1997 many other acts have become law, including Data Protection Act 1998 and the
Human Rights Act 1998.
The disclosure of personal information should now be checked against the provisions
of the Data Protection Act 1998. All personal health records computerised or
manually held come into the category of sensitive personal data. The Data Protection
Act 1998 came into effect in October 2001. It supercedes the Access to Health
Records 1990. The act strengthens the controls around the processing of data. The act
applies not just to data that is processed automatically, but extends to paper-based
records held in relevant filing systems.
In the NMC (2000) it states that ‘registered health care practitioners must make sure
that, where possible, the storage and movement of records in health care settings does
not put the confidentiality of patient information at risk.’
McHale and Tingle state in their book ‘Law and Nursing’ that ‘the obligation of
confidentiality continues after the patients death.’ However, while maintenance of
confidentiality may be part of the professional’s ethical obligation, it is not certain
whether legal proceedings could be brought about in such situations.
Kennedy and Grubb, 1994 note that ‘it has been suggested that a court might reject a
claim of breach of confidence brought about after the patient’s death on the basis that
the obligation only existed during the person’s lifetime.’
It can be seen from these two references regarding disclosure after death that even
though it is a nurses obligation to maintain the patients confidentiality, if it were to be
broken the family of the patient may not be able to legally do much about it.
In conclusion, it can be said that disclosure of confidential information to others is
justified if it is necessary in the interests of the health and/or safety of the patient, the
public or the health care professional.
Confidentiality is an aspect of nursing that needs to be constantly remembered and
reinforced as there are so many situations that can result in accidental disclosure
where can still be a cause for serious disciplinary action being taken on the nurse.
Information regarding patients should be treated as confidential and it should only be
used for its purpose it was given. Patients’ confidential information should never just
be shared with anyone as it can have serious consequences, maybe not for the nurse if
it is not reported but on the patients’ lives.
Most people understand and accept that their information must be shared with others
in the health care team in order to provide care. The nurse should always make sure
that their patients’ are aware of this and that they know the reasons why.
The nurse must respect anyone that objects to particular information being shared
with others, except where not doing so would put others at risk of death or serious
harm.
The nurse should make sure that anyone the confidential information is shared with
understands that it was also given to them in confidence, which they should respect.
Confidentiality is a legal duty for health care professionals and should always be
maintained.
References
Caldicott (1997). Report on the review of the patient identifiable information. The Caldicott Report. December. http://
Dimond,B. Legal aspects of nursing, 3rd edn. p150
Department of Health (1996). The protection and Use of Personal Health Information
General Medical Council (1995). HIV and Aids: The ethical considerations
Kennedy, I. and Grubb, A. (1994). Medical Law, Text with Materials
Mason,J.K. and McCall Smith,R.A.(1999). Law and Medical ethics, 5th edn. P194
McHale, J. and Tingle, J. Law and Nursing. (1999) 2nd edn)
Nightingale,F. (1859). Notes on nursing. Blackie reprint 1974, p70
Nursing and Midwifery Council (2000)
Nursing and Midwifery Council (2002).
Royal College of Nursing (2003). Confidentiality. P3
UKCC(1996). Guidelines for professional practice
MODULE: PP1D03
REGISTRATION NUMBER: 03016641
ESSAY TITLE: ‘You must treat information about patients and clients as confidential and use it only for the purpose for which it was given.’
WORD COUNT: 2792
NAME: Jodie Dalton
DATE: 25/06/04
