Sunday, 29 March 2015

When should employers be told about information provided in confidence to doctors?

The awful events of last week have generated a considerable amount of comment about the extent to which an employer is, to ought to be, aware of the mental health of key employees.

Does data protection legislation prevent the disclosure of critical information which, if withheld from an employer, permit the employee to carry out acts that potentially have heinous consequences?

In the UK, certainly not. Data controllers can always protect the vital interests of other people in cases where it would be unreasonable to expect the data subject to consent to the disclosure of sensitive personal data, or when the consent of a data subject has been unreasonably withheld.

The debate ought to focus less on any perceived failings of data protection legislation and more on the obligations of confidence that doctors (and others) have with those who are being counseled.

This is why I’m looking forward to contributions to this debate from members of BMA’s Medical Ethics Committee. The Committee debates ethical issues on the relationship between the medical profession, the public and the state. It also liaises with the General Medical Council on all matters of ethics affecting medical practice. Other members of the BMA's secretariat produce detailed guidance and discussion papers on a wide range of medico-ethical issues, and offers individual ethical advice to BMA members over the phone or by email.

The BMA's confidentiality and disclosure health information tool kit is a great start to those who are keen to understand the current guidelines. On the issue of disclosing medial data in the public interest, for example, it says: Health professionals should be aware that they risk criticism, and even legal liability, if they fail to take action to avoid serious harm. Advisory bodies, such as the BMA, cannot tell health professionals whether or not to disclose information in a particular case, but can provide general guidance about the categories of cases in which decisions to disclose may be justifiable (see below). Guidance should be sought from their Caldicott guardian, professional body or defence body where there is any doubt as to whether disclosure should take place in the public interest.”
I’m looking forward to more specific guidance from the BMA, in light of recent events. Many patients are unlikely to be fully forthcoming to medical professionals if they feel that the effect of their most candid confessions would be to curtail the careers they have fought so hard to forge.
Somehow, the BMA is going to have to reassure the public that the confidentiality obligations which currently exist between doctor and patent and are sufficiently strong to encourage patients to continue to open their souls to their doctors. At the same time, doctors may well need additional assurance that they will not be held legally liable when it is necessary to disclose information that really ought to be made more widely available.