Block 3 VLE Flashcards
Describe the legal framework that governs disclosure of personal and health related information
- Data Protection Act (2018)
to supplement some sections of the GDPR. The two laws should generally be considered together. - General Data Protection Regulation (GDPR) (2018)
– allows access to health records for all living individuals
– NHS Trusts have 1 month to respond to request 6 key principles - Processed fairly, lawfully and in a transparent manner in relation to the data subject.
- Collected for specified, explicit and legitimate purposes and not further processed for other purposes incompatible with those purposes.
- Adequate, relevant and limited to what is necessary in relation to the purposes for which data is processed.
- Accurate and, where necessary, kept up to date.
- Kept in a form that permits identification of data subjects for no longer than is necessary for the purposes for which the personal data is processed.
- Processed in a way that ensures appropriate security of the personal data including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.
- Notifiable diseases – public health (infectious diseases) Act (1988)
- Access to Health Records Act 1990 – allows access to health records of deceased people
What is the GMC guidance on confidentiality?
“You must make sure any personal information about patients that you hold or control is effectively protected at all times against improper access, disclosure or loss.”
“Trust is an essential part of the doctor-patient relationship and confidentiality is central to this. Patients may avoid seeking medical help, or may under-report symptoms, if they think their personal information will be disclosed by doctors without consent, or without the chance to have some control over the timing or amount of information shared.”
Consent is the usual basis for sharing information about a patient’s care;
Can be implied or explicit;
Implied consent can be sufficient if all the below are met:
The data is being accessed to support a patient’s direct care; Information is available to patients explaining how data will be used, and how they can object.
You have no reason to believe they would object.
You are satisfied that anyone you disclose information to will understand it is given to them in confidence, and will treat it accordingly
‘If you suspect a patient would be surprised to learn about how you are accessing or disclosing their personal information, you should ask for explicit consent unless it is not practicable to do so.
When disclosing information about a patient, you must:
(a) (b)
use anonymised or coded information if practicable and if it will serve the purpose
be satisfied that the patient:
(i) has ready access to information that explains that their personal
information might be disclosed for the sake of their own care, or
for local clinical audit, and that they can object, and
(ii) has not objected
(c)
disclosed for purposes other than their care or local clinical audit, unless the disclosure is required by law or can be justified in the public interest
(d) keep disclosures to the minimum necessary for the purpose, and
(e) keep up to date with, and observe, all relevant legal requirements,
including the common law and data protection law.
What are the underlying ethical principles grounding confidentiality?
- Consequentialist arguments – patient trust, public trust, harm of non-disclosure
- Respect for autonomy - Self-determination includes determining how information about oneself is used and how or whether this is shared
- Virtue ethics – promise keeping and trustworthiness
- Duty of care
- Patient-doctor relationship
What are some ethical justifications for breaching patient confidentiality?
Breaching confidentiality /disclose Secondary uses
Use anonymous or coded information
Seek patient consent – for identifiable info, consider more explicit consent
If not practicable to get consent (see criteria) then may use information without consent (see Confidentiality Advisory Group of the Health Research Authority)
If in the public interest (see criteria) then may disclose information without consent
Specific regulation for research purposes
In cases of research, disclosure of identifiable info has to
be approved by a Research Ethics Committee (REC)
Notifiable diseases under the Health Protection (Notification) Regulations 2010
Hospital infection control
Duty microbiologist
Public Health England
Diagnosing clinician’s duty to report the case to the local
health protection team
Form
Notify urgent cases by phone within 24 hrs
Legislation
Public Health (Infectious Diseases) Act (1988)
Public Health England regulations
Health Protection Regulations (2010)
Other scenarios
1. reporting concerns about patients to the DVLA/DVA
2. disclosing records for financial and administrative purposes
3. reporting gunshot and knife wounds
4. disclosing information about serious communicable diseases
5. disclosing information for insurance, employment and similar
purposes
6. disclosing information for education and training purposes
7. responding to criticism in the press
Describe the legal framework governing treatment of patients in an emergency setting
Treating with consent
1. If patient lacks capacity, proxy consent possible (Mental Capacity Act,
2005)
2. Lasting power of attorney (LPA) (appointed by patient in advance)
3. Court-appointed deputy (appointed when patient lacks capacity).
Treating without consent
- Doctrine of necessity (common law) -urgency; life threatening emergencies
- If patient lacks capacity, treatment must be in their best interests (MCA)
- Patient can be detained under MHA – whether or not they have capacity - But only under very specific conditions
Who has the legal authority to consent to treatment for a child?
- The (competent) child 2. Parents
a. Parental responsibility (under Children Act 1989) is with:
i. Mother
ii. Father if married to mother at time of child’s birth, or - if registered on birth certificate, or
- by Parental Responsibility Agreement with mother, or
- by various kinds of court order
How can the doctrine of necessity apply to treatment in emergencies?
Doctrine of necessity (common law)
- Urgency – emergencies may be life-threatening and may mean reduced time for assessing capacity
- “When an emergency arises in a clinical setting and it is not possible to find out a patient’s wishes, you can treat them without their consent, provided the treatment is immediately necessary to save their life or to prevent a serious deterioration of their condition. The treatment you provide must be the least restrictive of the patient’s future choices.” – GMC Consent guidance
How can the Mental Capacity Act (2005) apply to treatment in emergencies?
If patient lacks capacity, treatment must be in their best interests (MCA)
1.
In order for a patient to have capacity, they must be able to do all of
the following:
i. Understand the information necessary to make a decision;
ii. Retain the information long enough to make a decision;
iii. Weigh the information;
iv. Communicate their decision;
How can the Mental Health Act (1983) apply to treatment in emergencies?
Patient can be detained under MHA – whether or not they have capacity - But only under very specific conditions
Identify some of the ethical principles and values that inform decision-making in emergency medicine
Doctrine of necessity
Best interests
He must consider, so far as is reasonably ascertainable—
(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.’
the person making the determination must not make it merely on the basis of—
(a) the person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead
others to make unjustified assumptions about what might be in his best interests.’
