In their recently published article entitled Confidentiality and Public Interest Disclosure, Paul Snelling and Oliver Quick make a persuasive case for how existing healthcare professional regulation in the UK fails to provide clear standards regarding when the duty of confidentiality may lawfully be set aside on the basis of public interest. This regulatory lacuna should trouble patients and the broader public alike. It creates uncertainty for professionals engaged in the health practices a patient may encounter, and it clearly is of concern to professionals, too: Snelling and Quick note that the British Medical Association (the registered trade union for doctors in the UK) has received more queries relating to confidentiality than other areas of ethical concern.
What is going on here, and how do Snelling and Quick advance their observation to point out such problematic anomalies in the healthcare regulatory environment? In what follows, I summarise and engage with their approach and key findings, concluding with several thoughts about future research paths to further explore how and why guidance for healthcare professionals suffers from poor quality, at least insofar as it concerns confidentiality.
In the UK, healthcare professionals are governed by several profession-specific regulators. For example, medical doctors are governed by the General Medical Council (GMC), nurses and midwives by the Nursing and Midwifery Council (NMC), dentists by the General Dental Council (GDC), pharmacists by the General Pharmaceutical Council (GPC), and so on. Since 2012, the Professional Standards Authority for Health and Social Care (PSA) has served as a kind of ‘meta-regulator’ to monitor all health professional regulators and, primarily by way of annual reviews, acts to assess these regulators against standards of good regulation.
As should be well known to many readers of Jotwell, one of the core tenets of proper conduct by healthcare professionals in their relationships with patients – be they doctors, nurses, dentists, osteopaths, pharmacists, or others – is the safeguarding of secrets confided in them by their patients. The law of confidentiality in the UK is largely a creature of the common law but has been influenced by professional regulation and in some cases, legislation as well.
The duty of confidentiality is not absolute, however. It may yield in certain circumstances and this is where much uncertainty arises. Specifically, the duty of confidentiality may yield in three broad circumstances: (1) when the patient consents; (2) when disclosure is required by statute or a statute otherwise lifts the duty; or (3) when there is an overriding public interest. Regarding the latter, to take the GMC guidance as an example, doctors are informed at paragraphs 22 and 63 that “…there can be a public interest in disclosing information if the benefits to an individual or society outweigh both the public and the patient’s interest in keeping the information confidential. For example, disclosure may be justified to protect individuals or society from risks of serious harm, such as from serious communicable diseases or serious crime.”
Snelling and Quick are interested in looking at the specific question of disclosure of confidential information where there is no patient consent. Specifically, they ask whether disclosures by health professionals other than doctors are held to the same standards as in medical practice, or whether different legal and professional standards apply? After all, it is not the case that a nurse can simply rely on standards and guidelines for doctors, or that doctors can rely on standards and guidelines for opticians. As the authors note, “increasingly other healthcare professionals have their own caseloads and powers, including independent prescribing, and are required to make autonomous decisions for which they are alone accountable.”
To undertake their assessment that compares healthcare regulators’ standards and guidance, Snelling and Quick used three sources of benchmarking guidance on the issue of confidentiality: (1) the Department of Health’s NHS Code of Practice on confidentiality, (2) its supplementary guidance on disclosure, and (3) the GMC guidance on confidentiality. While the first two sources clearly apply to all practices within the NHS and therefore apply to any professional working in and around health, it is less clear to me why Snelling and Quick also use the GMC guidance as a benchmarking source, given it applies only to medical doctors. They explain this decision (P. 14) on the grounds that:
The GMC was the first health professional regulator to issue confidentiality guidance, which is more detailed compared to other regulators and has been endorsed in court judgments. Importantly, on the points covered by the framework, these three documents are largely consistent with each other and together articulate an account of the legal position recognized by the courts and clearly apply to all healthcare professionals.
While it is undoubtedly true that the GMC guidance is the most comprehensive of any confidentiality guidance across the regulators, and the most respected and endorsed by the courts, to my knowledge it has not been formally established that it “clearly applies” to all healthcare professionals. In any event, this does not materially diminish the power of Snelling and Quick’s analysis.
From a close reading of these three sources, Snelling and Quick develop a framework of five questions as they concern public interest disclosure and areas of practical importance for health professionals: (1) Is public interest explained? (2) Is the nature and level of harm to be avoided explained? (3) Is intended beneficiary of disclosure explained? (4) Is disclosure to prevent or detect serious crime explained? and (5) Is safeguarding explained?
The authors’ findings are indeed a cause for concern. Across the nine regulators examined (GMC, GDC, NMC, General Chiropractic Council, General Optical Council, General Osteopathic Council, General Pharmaceutical Council, Health and Care Professions Council, Social Work England), Snelling and Quick find that “…the quality of some health professional regulatory guidance is poor” and inconsistency reigns. This inconsistency is bound to confound healthcare professionals and drive further uncertainty and confusion, and could well leave them to second-guess a regulator or the courts. Undoubtedly, this is troubling for professionals and the public alike because no one really knows where they stand until decisions are tested.
Snelling and Quick offer thoughtful ways to overcome this troubling finding of inconsistency and poor quality in guidance. First, they recommend that each statutory regulator of professionals should review their guidance on confidentiality to ensure that it is consistent with the three reference sources Snelling and Quick relied upon (although this does raise questions about reliance on the GMC guidance that apply to doctors only). Second, they recommend that the PSA, as the ‘meta-regulator,, work with appropriate regulatory and professional bodies to undertake a review of professional guidance to drive consistency and greater detail. Finally, they recommend that the UK Government take up the Law Commissions’ suggestion that a new unifying statute for health professional regulators should establish a duty to provide explanatory guidance. This would make the issuing of regulatory guidance an essential, rather than optional, part of the regulatory role, and would serve as a basis to drive better consistency and quality of guidance concerning confidentiality and disclosures in the public interest.
Intriguingly, Snelling and Quick suggest that there may be scope for different standards of practice in disclosing confidential patient information on the grounds of public interest, depending on, for instance, whether the professional treats the whole person rather than a single condition of part of the body. Further research (and as they note, public consultation) is warranted to explore this potential for aspects of confidentiality to differ between professional groups, as well as how this difference it might be perceived by patients and other stakeholders.
In sum, Snelling and Quick have provided rich food for thought on the role of professional regulation and the relationship between common law and regulatory guidance, including the possibility of differing standards for different healthcare professions. Their article also makes one question the law’s current reliance on such an amorphous concept as “the public interest,” with little understanding across regulators as to what it means and when it ought to be lawfully deployed. Finally, their article also makes clear that a wider review of healthcare professional regulation is needed.
