The medical staff

In W v Egdell,7 the case was against a psychiatrist who had been asked to submit a report on a patient previously convicted of manslaughter and sentenced indefinitely to a secure hospital, as steps were made to review his case for eventual release. Dr Egdell was asked by the patient’s solicitors to submit a report for this purpose. However, Dr Egdell felt that this man was still a danger to the public and submitted a report to his solicitors to that effect.

This report was not forwarded to the hospital or the tribunal considering the case, by the patient’s solicitors, as it was detrimental to his case. Dr Egdell forwarded a copy himself and another was sent to the Home Secretary on his recommendation. The Court of Appeal defined three criteria for the nature of confidential information as specified previously and it did conclude that a duty of confidence was owed by Dr Egdell.

However, it accepted the breach of confidence in this instance, stating that this duty was not absolute and that it had to be balanced against other duties, including looking after the interests of public safety. The court decision focused on the balance of the doctor’s duties in terms of the public interest, between maintaining public trust in professional confidentiality and protecting public safety. It was made clear that the court endorsed these actions only in light of the fact that the information was passed only to those who needed to know it.

Had Dr Egdell gone to a newspaper with the report, it would have been a quite different outcome. The parties to whom confidential information is passed (in this case the hospital psychiatrist and the Home Secretary) should be individuals who ought to know that the information is confidential and are obliged to maintain the confidentiality of that material. Another case, Hunter v Mann,9 again highlights the conflict between a doctor’s duty to maintain the confidence of his patient and to protect the safety of the public.

The statutory duty of a doctor to disclose information on a disorder that would affect a patient’s ability to drive safely, was held to be of greater importance to the public interest than maintaining trust in professional confidentiality. The doctor was deemed to be included as being one of ‘any other persons’ (other than the registered keeper of a vehicle) responsible for informing the police of anyone guilty of a crime (of being unfit to drive). The judge stated that it is only in ‘very exceptional circumstances’ such as these that a doctor’s duty to preserve confidentiality would be outweighed.

These exceptional circumstances have been outlined in the latest GMC booklet on Confidentiality6 as discussed previously and there are certain situations in which the doctor is legally obliged to provide information which might otherwise be deemed confidential. Doctors are obliged to answer police questions truthfully and the police are able to obtain warrants check and seize material considered to be relevant to their case. In normal circumstances, a search warrant is obtainable from a lay magistrate; however, seizure of confidential medical records requires a warrant to be obtained from a circuit judge.

10 Thus the ability of medical staff to be confidential is a somewhat qualified privilege. However, it is also the case that many of the decisions about breaching patient confidentiality are made by doctors themselves, without enforcement from legal processes or statutory obligations. Even in law, what is deemed ‘very exceptional circumstances’ may not always be clear. It could be argued for many of the cases relating to breaches of confidence that imparting information to relevant others could be in the patient’s best interests, regardless of any other potential harms.

If a patient threatens violence towards another, it may be that removing that potential through legal process, for instance sectioning under the Mental Health Act, could be deemed as a necessary step to take in order to prevent harm being done, either to ‘the public’ or indeed to the patient. The outcomes of his or her actions may have serious personal consequences (at the very least in a legal sense). However, most of the cases where exceptions to confidentiality have been made have been based on the protection of public interests or safety rather than protection of the patient.

Following from earlier discussions of statutory obligation to disclose aspect of confidentiality and the circumstances in which it might be acceptable to breach confidence an important issue which has not yet been tested in the British courts is that of whether the doctor ever has a duty to disclose information (in the absence of actual legal enforcement). In the US courts, Tarasoff v Regents of the University of California11 resulted in a medical centre being sued for not disclosing threats of harm by a patient against a former girlfriend.

The medical staff passed the threat onto the police but not to the girl herself, who was subsequently killed by the patient. Importantly for the situation under consideration is that the threat was to a named person rather then to the ‘general public’. Again the court accepted that there was a duty of confidentiality to the patient, which would have been in the public interest. However, the court found against the medical centre on the grounds that the greater public interest was the protection of the public safety, or in this case a particular member of the public.

They stated the ‘ the protection of confidentiality must end where the public peril begins’. 11 This ‘duty to disclose’ could be extended to informing known partners of HIV positive patients of their partners status, on the basis of their being a potential harm to this third party by non-disclosure. Both Brazier12 and Mason & Macall Smith13 comment that it would be unlikely for an English court to follow the same route as this US case. English law does not tend to make one individual responsible for the actions of another.

There is no duty to warn others, just as there is no duty to rescue someone in the event of their falling into a canal (in the absence of any rescue aids). This is especially so if there is no specific relationship between the one party and another. It may be viewed differently if the third party, potentially at risk of harm, is also a also a patient as the doctor has duties to that patient too. The doctor may fulfill his or her obligation by assessing any third party risk, even if that assessment is ultimately incorrect.

The case of W v Egdell7 involved a patient with a history of psychiatric illness and violence, facts which would have undoubtedly contributed to the final conclusions of Dr Egdell’s reports. In the situation under consideration, the patient did not have an extensive history of mental illness and certainly no previous indication of a violent nature, for had this been the case then we can presume that the therapist would have been likely to have taken the threat to the boyfriend more seriously.

In his concluding remarks on W v Egdell 7 Judge Scott stated that this case appears to indicate that the ‘duty of confidence owed by psychiatrists to W and others like him is less extensive than the duty owed to ordinary members of the public’ Whether or not the remarks can be extended to persons being treated voluntarily for psychiatric illness is doubtful unless perhaps it could be determined that such a patient receiving psychiatric care who threatens harm to another person can be considered different to ‘ordinary members of the public’.

If this were the case, then it could also be argued that people who do not inform sexual partners that they are HIV positive are in a similar category, as their protection of confidentiality could end where the ‘public peril begins’,11 be it the general public or a named and known individual. The psychiatrist has to decide on what action she will take as to her patient and the threats she made against her boyfriend. She made a professional judgment when the threat was made that it was not serious, although she obviously felt it was worth monitoring as an extra appointment was made.

There is an argument against providing such information, on the basis that this particular patient may not trust therapists in the future and generally that public trust in the confidential nature of the doctor-patient relationship, (and even more so in many ways, the psychiatrist – patient relationship). It may also be the case of course that the patient herself is innocent of any wrongdoing and would rightly feel aggrieved at being interrogated for a crime which she did not commit.

One alternative for the psychiatrist is to try to contact the patient and ask for her consent in discussing her case with the police. Quite apart from potentially resolving the conflict about confidentiality, this would provide the opportunity to speak with the patient and try to assess her psychiatric state and to ensure that she knew that support was forthcoming. If this was unsuccessful, on the basis of the cases discussed here, it would appear that the therapist is obliged to answer questions from the police about her patient.

This would include the threat against her boyfriend if asked. If no such question is asked, she may not necessarily be obligated to provide the information; however, if a subsequent attack was made with a more serious outcome, it could be argued that this omission was negligent. If the police have obtained a relevant search warrant, or if they do so in the future, the medical records would have to be made available to them, presumably including any record of the threats made and the reasons for the additional appointment.

The fact that a violent action has already taken place, even though it was crime against property as opposed to the threatened crime against a person indicates that the perpetrator has a sufficient depth of feeling and an ability to do at least some harm. The therapist does not appear to know of any direct evidence that the crime was committed by her patient and I suspect that she would perhaps be unlikely to obtain any such information from the police.

However, the facts as she knows them, in conjunction with the threat made and the volatile nature of the patient, would make it seem appropriate for the therapist to disclose the relevant facts to the police. The degree of risk to the third party prior to the attack on his car could be interpreted as minimal on the basis of the facts and history available. The subsequent action against his property, violent in nature, tipped the balance away from the patient’s right to confidentiality from her psychiatrist, to the need to protect others, in this case a known individual.

However, if the police inquiry was not obliging her to provide this information, she would not be under any duty in English law to warn the boyfriend of the threats made against him (presuming that he is not a patient of hers and therefore she has no direct responsibility to him). The psychiatrist has a duty to impart information only to those who need to know it and to those who she is confident will use it responsibly.

The police are such that she could assume that they would keep any information passed on about her patient confidential, as part of their duty to the patient. Thus, her duty to only pass on information to relevant bodies (as per W v Egdell7), would be fulfilled. The GMC guidelines by which she would be bound accept that there are circumstances where confidentiality cannot be maintained, and police inquires fall under the statutory obligations mentioned to this effect.

In addition, in the interests of public safety alone, she could also argue that the GMC guidelines would support her decision to provide them with the information they require.

Bibliography & references

Brazier M ‘Medicine, Patients and the Law’ 1992 esp. Ch 3. Penguin books Mason J & McCall Smith RA. ‘Law and Medical Ethics’ 1991 (3rd Ed. ). Butterworths. Dyer. C (ed) ‘Doctors, Patients and the Law’ 1992 esp. Ch 2. ‘Confidentiality and Medical records, Lee. R. Blackwell Scientific. Kennedy& Grubb

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