Disclosures without consent - Scotland

Summary

Certain circumstances can mean you are obliged to disclose information about a patient, even if you do not have their consent; under other circumstances, disclosure may be justifiable. This factsheet gives you further information about these circumstances.

An obligation to disclose

Under certain circumstances, the disclosure of medical information is required by law. In these situations, consent from the patient is not required. You should not disclose any more information than is absolutely necessary.

The patient should be made aware of the disclosure, and informed about why you are disclosing the information, unless it is not practicable to do so; for example, if the patient cannot be contacted quickly enough, or if informing the patient would defeat the purpose of the disclosure. It is important to fully document any decisions about the disclosure of information you make.

You should not disclose information about an identifiable third party (who is not a healthcare professional involved in the patient’s care) that may be contained in your patient’s records, without their consent, unless it is reasonable in all the circumstances.

If you have any concerns about disclosing information, you should contact MPS.

Disclosures required by statute

Legislation provides for the obligatory disclosure of information, under particular circumstances. Examples include the Public Health (Scotland) Act 2008 and the Road Traffic Act 1988. Note, in particular, the following obligations:

NHS Counter Fraud investigations

Investigations into fraud in the NHS may require access to confidential patient information. The investigators have the power to require the disclosure of the relevant parts of a patient’s record, should they believe that this is important to the investigation.

Disclosures to the GMC – investigation of a doctor’s fitness to practise

Under the Medical Act 1983, the GMC has the power to request access to a patient’s medical records for the purposes of an investigation into a doctor’s fitness to practise. Unless you are the doctor under investigation, you are obliged to comply with that request. However, it would be wise to ask the GMC if the patient’s consent can be obtained before disclosing confidential information. Where a patient declines to consent to disclosure they should usually be informed that disclosure will still need to take place.

If you are uncertain whether you may be under a statutory obligation to disclose confidential information, you should contact MPS.

Procurator Fiscal investigations

In certain circumstances, the Procurator Fiscal is required to investigate the circumstances of a death – for example, if the death occurred in a violent manner or in custody (for further information, see the MPS factsheet Reporting Deaths to the Procurator Fiscal). You are obliged to disclose any information you may hold about the deceased that is likely to be relevant to the investigation.

Courts or litigation

Both civil and criminal courts have powers to order disclosure of information in various circumstances. A judge or presiding officer of the court can require you to disclose patient information. You should highlight the lack of patient consent and should object to the judge or the presiding officer if attempts are made to compel you to disclose what appear to you to be irrelevant matters, eg, matters relating to relatives or partners of the patient who are not party to the proceedings. The patient whose information is sought should be told about the order, unless that is not practicable or would undermine the purpose for which disclosure is sought.

Reporting patients to the DVLA

The Driver and Vehicle Licensing Agency (DVLA) is legally responsible for deciding if a person is medically unfit to drive, and needs to know if a driver has a condition or is undergoing treatment that may now, or in their future, affect their safety as a driver. The driver is legally responsible for informing the DVLA about such a condition or treatment. If a patient refuses to accept the diagnosis or will not inform the DVLA, you should speak to them, and if they continue to drive against your advice you should contact the DVLA and disclose any relevant information. 

See the GMC guidance Confidentiality: reporting concerns about patients to the DVLA or the DVA.

Justifiable disclosures in the public interest

The disclosure of information about a patient without their express consent may be justifiable, if the public interest in disclosing the information outweighs the patient’s interests in keeping it confidential.

In all cases, you must decide whether or not the possible harm caused to the patient – and the overall trust between doctors and patients – by disclosing this information will outweigh the benefits resulting from the disclosure.

You should try to ensure that the information is anonymised, if practicable, and that you are only disclosing information relevant to the purpose of the disclosure. Only in exceptional circumstances should non-anonymised data be disclosed.

You should attempt to seek the patient’s consent, but there are certain circumstances when this will not be possible – for example, if the patient lacks capacity, you are not able to trace the patient, obtaining consent undermines the purposes for which the disclosure was being made, or the disclosure must be made quickly, such as cases of detection or control of communicable diseases.

It is important to document any decision you make and your reasons for disclosing the information.

Disclosure to protect the patient or others from harm

The disclosure of a patient’s personal information may be in the public interest, if it is likely to protect individuals or society from risks of serious harm, such as serious communicable diseases or serious crime, to reduce the risk of death or serious harm to the patient or a third party, or as a result of gunshot or knife wounds.

If it has not been possible to seek the patient’s consent, you may disclose personal information without consent if the benefits to an individual or to society of the disclosure outweigh both the public and patient’s interest in keeping the information confidential.

If the patient has refused consent to the disclosure, you should consider any reasons provided by the patient. If you still consider that disclosure is necessary to protect a third party from death or serious harm, you should disclose information promptly to the appropriate person or authority.

The ultimate decision about whether or not a disclosure was made in the public interest is determined by the courts. If you do disclose the information, and are required by the GMC to justify your decision, you need to ensure that your reasons are clearly documented.

The duty of confidentiality is not absolute. There are certain exceptional circumstances when disclosure of medical information without consent can be justified or is required.

Further information

• GMC – Confidentiality (2009)
• GMC, Supplementary guidance – Confidentiality: Reporting Concerns About Patients to the DVLA or DVA
• NHS Scotland Code of Practice on Protecting Patient Confidentiality