Dr Ellie Mein
What would you do if a patient's health was at risk of affecting their profession? With the GMC due to publish its revised confidentiality guidance later in 2016, Dr Ellie Mein looks over your responsibilities.
It's a relatively common scenario in the scheme of medico-legal dilemmas - a doctor is faced with a patient who continues to drive against medical advice. However, there are numerous other situations where the same legal and ethical principles come into play.
For example, how does a GP approach the situation when a patient who is known to hold a pilot's licence and has recently started having seizures refuses to stop flying? What does a psychiatrist do when a patient who is known to be an offshore diving contractor has developed a worsening depression and suicidal tendencies, but doesn't want to stop diving?
While these scenarios might be less commonly encountered than a patient refusing to inform the Driving and Vehicle Licensing Agency (DVLA) when they're unfit to drive, the considerations are broadly the same. The GMC's guidance 'Confidentiality; reporting concerns about patients to the DVLA or the DVA' (2009) outlines these principles.
Doctors owe their patients a duty of confidentiality, but this duty is not absolute. There are times when it might be necessary to disclose information about a patient, even without their consent or when consent has been refused, in order to protect others from harm.
In cases where disclosures in the public interest are considered, the doctor should explain to the patient why they may not be fit, at that point in time, to undertake a certain career or hobby. The patient should be encouraged to inform the appropriate person or organisation about their medical condition, so that their fitness to take part in the activity can be assessed by someone with the relevant expertise.
If the patient can't be persuaded to inform the relevant agency or stop the activity, you may need to disclose the minimum, relevant information to the appropriate organisation, if you feel it meets the public interest threshold.
Before disclosing information about the patient to any third party, the doctor should if possible try to inform the patient of the decision to disclose. Similarly the doctor should inform the patient, ideally in writing, after the disclosure has been made. As doctors may be called upon to justify their decision to disclose in the absence of consent, you should document the rationale for the disclosure and the steps taken in making the disclosure.
Each case should be taken on its own merits. It may sometimes be difficult to ascertain if the public interest threshold is met, and we would advise members to discuss complex cases like this with the MDU.
Making the call
In novel situations like those outlined above, an additional problem can be determining who the appropriate person is to disclose this information to. In the pilot example, the appropriate organisation would be the Medical Department of the Civil Aviation Authority (CAA).
'The Germanwings accident of March 2015 demonstrated the tragic consequences of unsafe behaviour in a pilot and the risk this presents to public safety,' explains Dr Sally Evans, chief medical officer at the CAA's Safety and Airspace Regulation Group.
'It is essential that any concern about the medical fitness, psychological wellbeing or unusual behaviour of a pilot is brought to the attention of the CAA as quickly as possible so that it can be investigated and, where appropriate, action is taken.
'The doctor will be able to speak directly with an aviation medicine specialist who will need the name and identifying details of the pilot and the nature of the concern. Depending on the situation, the CAA will work with the pilot and the Aeromedical Examiner who undertakes their regular medicals to ensure their certification status is appropriate and to enable a return to flying once recovered from any acute condition.'
For queries relating to the medical fitness of pilots, the Medical Department at the CAA can be contacted via email at email@example.com.
In relation to the diver, provided they are considered a diver at work within UK waters, they will be regulated by the Diving at Work Regulations 1997. These regulations are enforced by the Health and Safety Executive (HSE) and require that divers must not dive in a diving project if they are aware of any illness or medical condition which renders them unfit to dive.
If doctors have concerns that a patient continuing to work as a diver may put others at risk of serious harm then the Corporate Medical Unit of the HSE would be the appropriate organisation to contact on AMED@hse.gsi.gov.uk.
The MDU's advice line is always open to offer guidance on any situation involving confidentiality and disclosure. If you have a question, please do get in touch.
Dr Ellie Mein
MB ChB MRCOphth GDL LLM
Ellie joined the MDU as a medico-legal adviser in 2013. Prior to this she worked as an ophthalmologist before completing her Graduate Diploma in Law in Birmingham.
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