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Keeping it confidential?
I wrote last week about an inquiry into the care of Matthew Newland, in which one of the issues had been the failure of mental health services to listen fully to the concerns and views of his relatives. Health and social care staff often struggle with how much, if any, information they can share about service users. It is a balancing act – on the one hand service users are owed a duty of confidentiality, but on the other hand we expect family members to be part of the wider caring team, so surely they are entitled to information about what's happening with the care of their relative. Being able to strike the right balance is difficult, and how we make a judgement is usually down to what risk factors are present.
Sharing information about high risk
There's an oft-quoted piece of case law known as W v Edgell from 1989 which I think illustrates this balancing act. Very briefly, Dr Edgell was an independent psychiatrist who had been asked by a solicitor representing someone we only know as Patient W to write a report on the patient for a mental health tribunal. W had appealed to the tribunal for his discharge from hospital. He had a very high risk history involving serious offences and was now detained in a special hospital. In his report Dr Edgell did not support the idea of discharge, and so, perhaps unsurprisingly, his defence solicitor did not use the report! However Dr Edgell was so concerned about the risks posed by W that he sent a copy of his report to the managers of the hospital who in turn sent it to the Home Secretary. Patient W attempted to sue Dr Edgell for breach of confidentiality. The court found in Dr Edgell's favour. The judge’s argument was that the risks posed by W were such that breaching his confidentiality could be justified in the wider public interest. This really establishes a most important principle in information sharing, the greater the risk of harm, the greater our duty to share information with others. So if a service user says to you ‘I’m going tell you something very important, but I don’t want you tell anyone else’, then your response really depends on the nature of the information they are going to give you, and above all whether it indicates a risk to themselves or others.
Confidentiality v secrecy
The other point of this case is that the breach of confidentiality was within certain limits. Dr Edgell did not broadcast his report to the national newspapers or gossip about it in the pub. He sent it to the people who had management responsibility for high risk patients like W. Sometimes people do get confused between keeping something confidential and keeping it a secret.
Health and social care staff work within a team, some are closer members of the team than others, so it is easy to see how a worker might share information with their manager as part of providing good care and treatment. Where information sharing becomes a bit more difficult is when we are talking about sharing information with people in other organisations who are involved in the person’s care, or, in the case of the Matthew Newlands inquiry, where the person we might be sharing information with is a family member. The legal term we might use here is a third party. We have seen how there is justification established by W v Edgell that we can share information where the person, or other persons, might be at risk of harm if we kept that information to ourselves.
What the law says
Let’s have a quick run through the laws surrounding confidentiality:
- There’s a common law duty of confidentiality. This means when personal information is given in confidence by someone, they would expect it to be kept confidential where we are talking about important information
- Article 8 of The Human Rights Act 1998 respects the right to a private and family life
- The Data Protection Act 1998 incorporates those Article 8 rights, and provides a legal framework for the processing and keeping of information in all forms
- The Crime and Disorder Act 1998 gives a power to organisations to share information with the police in the interest of the prevention or detection of crime
Policy is good for you
An organisational policy on confidentiality should incorporate the requirements of law, and the principles of information sharing in health and social care such as can be found in the NHS Code of Practice on Confidentiality or the Health and Care Professions Council’s document Confidentiality - guidance for registrants. The policy booklet titled Effective Care Co-ordination - Modernising the Care Programme Approach 1999 states ‘Decisions to disclose information against the wishes of an individual should be fully documented and the public interest justification clearly stated.’
An effective policy is a good reference point for staff, service users and families, but it cannot cover every individual circumstance. Decision making about sharing information is a tricky area, but here are some useful pointers:
- If someone rings up to tell you something you can listen – you’re not breaching confidentiality by just listening and noting their concerns
- Discuss your organisation’s policies on confidentiality with service users and their families as part of the admission process
- Part of the admission process might be getting service users to given written authority to discuss their care and support with family members
- Where the person lacks mental capacity we can share information as long as we can demonstrate we are doing it in the person’s best interests
- If you do decide to share information, good practice would say you should tell the person what you are doing and why
- Make sure you are recording in writing the occasions when you breach confidentiality and the reasons for doing so
Take a look at the QCS package of policies. Whether the issue is supervision, safeguarding, daily communication meetings or child protection, confidentiality principles are at the heart of all of these.