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Section 2: Medico-legal aspects
Error in a legal context
So far, we have discussed medical error in general, nonlegal terms. Now we shall consider it from a strictly legal point of view. We shall look at issues surrounding consent and confidentiality. In a legal context, as soon as one mentions error, the word negligence immediately surfaces.
If a doctor makes a mistake in the treatment of a patient, then he or his family, may decide to pursue the hospital Trust (or the doctor himself, if he provided the treatment in a private capacity) for compensation. Generally speaking, in order to win compensation, the patient will have to prove that the Trust’s doctor employee was negligent. It is important to remember that negligence as a legal concept is all about financial compensation and that the law has defined negligence in specific terms. Not all errors will be considered negligent.
Negligence
Before looking in detail at what is relevant to this book, clinical negligence, we need to know the basics that lie behind what is called the tort of negligence (tort is simply the old French word for wrong. In modern legal terms, it forms a branch of legal study).
In principle, a person is liable in negligence if he has breached a duty of care owed by him to another in such a way as to cause damage to that person. What does this mean? In practical terms, in order to decide whether an act or omission is negligent, a lawyer must break this formula down, looking at each of its constituent parts, phrase by phrase, word by word. For example, he will ask himself whether a duty of care exists between the injured person and the alleged defendant.
It may not always be clear whether a duty exists in a given set of circumstances, but as far as medical treatment is concerned, it is assumed that a doctor owes such a duty of care to his patient. The key questions in any clinical negligence case are whether that duty of care has been breached and then if it has, whether any damage has been caused as a direct result of that breach.
Clinical negligence
Has there been a breach of duty?
When the treatment of a patient comes under scrutiny in a potential clinical negligence claim, the first question that will be asked is: was that treatment in accordance with the standard of a body of reasonable or responsible physicians? If it was, then the private doctor or the NHS Trust will not have breached their duty of care; but if the treatment does not accord with the standards of a reasonable body of physicians, then they will have breached that duty.
This test was first formulated by the House of Lords in the case of Bolam v Friern Hospital Management Committee in 1957. Hence the Bolam test.
Over the years, a body of legal case law has built up that indicates how this Bolam test should be applied. How, for instance, should we look on a case, where in a given set of circumstances, one set of physicians may treat a patient in a certain fashion, while others would adopt a different approach? In case law, so long as both bodies of physicians are reasonable or responsible, then it would not matter which one of the two approaches the doctor adopted. In other words, it is possible to have more than one correct approach to treatment.
But this begs the question: who determines whether you have breached your duty of care?
When an NHS Trust receives a Letter of Claim from solicitors representing a patient or family, it is likely that to obtain ongoing funding the patient or family will have investigated the case and gone to medical experts who have written reports critical of the care provided. On first inspection, there is a case for the Trust to answer.
In response, the lawyers for the Trust will instruct experts to look at the allegations made against it. The experts will be asked to consider both breach of duty and causation. So in the first instance, the answer to the question is that the opinions of the independent medical experts, as interpreted by the lawyers, will determine the progress of the case. If both experts, the expert for the family and the expert for the Trust believe that the care was substandard (i.e. care did not accord with the standards of a reasonable body of physicians), then it is likely that the Trust will concede, with the prior authority of the NHSLA, that the treating Trust doctors and, therefore, the Trust according to the principle of vicarious liability (since the doctors are Trust employees), has breached the duty of care to the patient. But what happens, if the expert for the Trust concludes that the treating clinicians have not breached their duty of care?
At this point one may say that the difference in the two opinions, that of the family’s expert and that of the Trust’s expert, simply reflects two different approaches. Have we not just said that a doctor will not breach his duty of care, so long as he acts in accordance with a reasonable body of opinion? Has not the Trust’s expert supported the clinician’s care? Is this not enough?
The short answer is that it may be, but not necessarily so.
The Bolam test has been qualified, or rather refined, by the case of Bolitho v City and Hackney Health Authority. The judges in this 1993 case stated that although one group of so called ‘reasonable practitioners’ may adopt a certain approach to treatment, if that approach does not stand up to logical analysis, then a doctor cannot expect his treatment of the patient to be endorsed, if he adopted that apparently ‘reasonable’, but illogical approach to treatment. This is just one way in which the competing views of experts may be resolved. But it may come down to something less tangible: merely that one expert is more believable and persuasive than another.
At the end of the day, if the case cannot be determined by other means, it will come before a judge, who will hear all the evidence, listen to the experts and decide which of them is more persuasive. It is, of course, the judge who will be the final arbiter. But before then, evidence will be disclosed, meetings will be held and views will crystallize. The experts for the opposing sides will have met and their opinions may shift one way or the other. The reality is that few cases will go before a judge. They will either be settled out of court or the patient or family will decide to drop the case. Doctors need to understand that an NHS Trust, when authorized by the NHSLA may settle out of court without accepting liability – often simply because the costs associated with even a successful defence may be unacceptably high. As public authorities the Trust and the NHSLA have a duty to ensure that public funds are used to best effect with an ongoing costs/benefits analysis of chances of success.
Causation
Let us assume that the patient or family prove that the doctor or Trust has breached their duty of care to the patient. This does not automatically mean that the patient will be awarded any damages. In order to obtain compensation, they must clear the causation hurdle. They must demonstrate that on the balance of probability the breach of duty was the direct cause of some injury or damage.
In some cases, causation is uncomplicated and straightforward. In others, it can be fiendishly complex. In the context of this book, we shall not delve too deeply into its intricacies, but hope to give you some idea of the basic concepts.
As an example of straightforward causation, take the case of an elderly man with COPD and a left sided pleural effusion. The doctor places a chest drain, but too low and on the wrong side. He performs the procedure without ultrasound and damages the patient’s liver. The patient loses a large amount of blood and suffers a cardiac arrest. The patient is resuscitated but has clear cognitive problems. The family will easily prove causation: the poor performance of the procedure has caused the patient’s injury.
Causation will be far less easy to prove in a case of septicaemia. A student is admitted to the Emergency Department with a rash which the doctor should have diagnosed as signifying meningococcal septicaemia. Within a matter of hours, the patient’s condition deteriorates and she dies on ITU the next day. The causation question to address is: would the patient’s life have been saved if appropriate antibiotics and fluids had been administered, when she presented? This question may prove difficult to resolve. Its answer will depend on a careful analysis by the experts of the medical and nursing notes to see how the patient’s condition deteriorated during her time in hospital and a judgement on how effective earlier treatment would have been.
Damages
The purpose of a claim in negligence is to provide the patient or family with compensation for any harm done to him through substandard care. Once it is established that the Trust has breached its duty of care to the patient and that that breach has caused injury, the court will move on to determine how much should be awarded in damages.
Clearly, it is impossible to adequately compensate someone in monetary terms for the physical disabilities they may suffer as a result of negligence, but the idea behind compensation is to put the patient in the same position as he would have been in, if the error had not been made.
The patient will be awarded a sum of money which is designed to compensate him for his pain and suffering and loss of amenity. He will also receive a sum to compensate him for any monetary expense arising directly from the negligence which he has incurred in the past and will incur in the future: for example, the costs of physiotherapy, travel costs and future care.
Finally, he will be compensated for the future losses that he will incur as a result of the negligence. The sorts of loss will depend on the severity of the patient’s injury and an assessment of the patient’s life expectancy and likely future earning potential in the absence of the injury. In the most severe cases of brain damage, the compensation for future loss could include sums for loss of earnings, the cost of buying and adapting a suitable home, the costs of nursing care, physiotherapy, occupational therapy, speech therapy and computer technology to aid in communication. Over the lifetime of a young brain damaged patient the loss that he will suffer as a result of negligence could easily be several million pounds, depending on his life expectancy. Ongoing financial commitments (for example, the care and support of any dependent children) will also be assessed in relation to the amount of any damages awarded. The patient may receive the damages as a one-off lump sum payment. Alternatively, he may receive periodical payments spread over his lifetime.
If a patient dies as a result of negligence, then his or her estate and dependants may be awarded a sum for pain and suffering, funeral expenses and a sum representing the patient’s financial and non-financial input into the family. The patient’s husband or wife would also receive statutory bereavement damages that are presently fixed at £11 800.
Ironically, if the patient dies with no dependants, then the damages could very limited, just a few thousand pounds.
The limitation period
An adult injured through medical negligence has three years to start his claim formally in the courts. (This three year period runs essentially from the time when the negligence occurred, but is more accurately defined by when the person harmed knew of the negligence). Although the court can extend this limitation period in certain circumstances, if he fails to start court proceedings within these three years, he can no longer pursue his claim.
However, if a person lacks mental capacity, the limitation clock may never start to run. He can then bring a case at any point in his life. ‘Mental capacity’ in this context means the ability to run one’s own financial affairs; it is different from the test for capacity in consent cases (see below).
When a patient dies, his personal representatives will have three years to start proceedings. This three-year period runs from the date of death or when it was known that there had been a mistake, if this is later.
Jurisdictions
The United Kingdom is divided into a number of different legal jurisdictions. In certain areas of law, England and Wales, Scotland and Northern Ireland have their own, different set of rules, as do also the Channel Islands and the Isle of Man. However, what we have said above about clinical negligence applies to all jurisdictions. (The Scottish word for tort is delict, but the principles are the same.) However, these jurisdictions do have their own rules for procedures that affect how a case is litigated.
The defence of the NHS trusts in clinical negligence cases is also organized in different ways. Thus the NHSLA is responsible for cases in England, whereas Welsh Health Legal Services is responsible in Wales. In essence, however, defence of such cases is financed out of central funds, no matter where in the United Kingdom NHS hospital cases are litigated.
Issues around consent
Consent to treatment is the foundation of patient autonomy and is fundamental to the trust that should exist between the doctor/nurse and the patient. It is required for all aspects of treatment, from the administration of routine antibiotics to the most complicated and demanding of surgical procedures.
From the standpoint of the physician confronted with an ill patient to treat, his wish is to help that patient by applying his medical knowledge to cure and alleviate suffering. That said, the general rule is that a patient, no matter what his age, a child or adult, cannot be made to accept treatment that he does not want. It is does not matter how painless, beneficial and risk-free that treatment would be; the patient is fully within his rights to refuse what he is offered. It is irrelevant that the consequences of refusal may be dire or fatal.
To put it bluntly, in legal terms, if the doctor treats without the patient’s consent, he is liable in the tort of battery. In layman’s terms, he commits an assault.
That is the general rule. But there are exceptions to this rule which will be discussed below. But we must first describe the framework within which consent operates.
Validity of consent
A patient’s consent is valid, if it is given voluntarily, if the patient has the mental capacity to understand the nature of the treatment and he has been given sufficient information about the procedure to understand its nature. In the context of errors, we are, therefore, interested in failures on the part of the physician to provide sufficient information and failures to respect the autonomy of the patient, i.e. ignoring his wishes. Before looking at these error types, we wish to focus on the issue of capacity to consent.
Capacity
The law considers an adult to be someone who is aged 18 or over. Children aged 16 and over are presumed to have the same capacity as an adult to consent to medical treatment (Family Law Reform Act 1969 and Mental Capacity Act).
A child under the age of 16 may have capacity, provided he is capable of understanding the nature of the proposed course of treatment and is capable of expressing that wish. Such a child is referred to as Fraser competent. There is no fixed age at which a child becomes Fraser competent.
However, a doctor should not assume that just because a patient is over 16, he is competent to consent: the patient may lack capacity and the doctor will need to assess whether the patient has capacity, by applying the general rules for competency. A person is competent, if he can:
- understand and retain information pertinent to the decision about his care, i.e. the nature, purpose and possible consequences of the proposed investigations or treatment, as well as the consequences of not having treatment;
- use this information to consider whether or not he should consent to the intervention offered;
- communicate his wishes.
Sometimes, the very condition from which the patient is suffering may affect their ability to make decisions about the treatment of their condition and deny them the capacity to make effective treatment decisions. Take the hypothetical case of a patient with anorexia nervosa, who refuses treatment for her condition. Although she has the capacity to consent to treatment, the courts may doubt whether she had sufficient understanding to refuse treatment, because it is a feature of anorexia nervosa that patients have a distorted view of what is a normal body image and this renders them incapable of making an informed decision. In circumstances such as this, a doctor should contact the Trust’s solicitors for advice and, if appropriate, make an application to the court for directions on what treatment, if any, is to be provided in the patient’s best interests.
Devolving responsibility for consent to another
In paediatric practice, someone with ‘parental responsibility’ or a natural parent must give consent, where the child lacks competence. There is no equivalent for patients over the age of 16 except where a Lasting Power of Attorney, with the relevant clauses, has been activated.
Mental Capacity Act and Lasting Power of Attorney
The Mental Capacity Act 2005 came into effect on 1 October 2007. It provides a much clearer legal framework for decision making in relation to those who lack capacity to direct those decisions with autonomy. Prior to the inception of the Act, the legal framework for decision making in this context was drawn from a variety of individual rulings (Case Law).
The Act aims to empower and protect people who may lack capacity on an ongoing basis to make some decisions for themselves, for example, some people with dementia, learning disabilities, mental health problems, stroke or head injuries. Alternatively, a lack of capacity may arise because at the time an urgent decision needs to be made, an individual temporarily has impaired consciousness whether due to an accident or being under anaesthetic, or his ability to make a decision may be affected by the influence of alcohol or drugs.
The Act makes it clear who can take decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they may lack capacity. The Act covers major decisions about someone’s property and affairs, healthcare treatment and where the person lives, as well as everyday decisions about personal care (such as what someone eats), where the person lacks capacity to make the decisions themselves.
There are five key principles:
- a presumption of capacity;
- individuals being supported to make their own decisions;
- individuals are entitled to make what others might regard as unwise decisions;
- a decision made under the Act must be made in their best interests; and
- any decision made should represent the least restrictive option in respect of their basic rights and freedoms.
The Act also makes provisions on the subject of restraint. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the person who lacks capacity, and if the restraint used is a proportionate response to the likelihood and seriousness of the harm.
The Act describes two situations where a designated decision-maker can act on behalf of someone who lacks capacity:
- Lasting Powers of Attorney (LPAs) – The Act allows a person to appoint an Attorney to act on his behalf if he should lose capacity in the future. In addition to managing decisions relating to property and affairs, the Act also allows people to empower an Attorney to make health and welfare decisions. Issues relating to property and affairs were also covered by Enduring Powers of Attorney (EPA) which the LPA replaces. Before it can be used, an LPA must be registered with the Office of the Public Guardian.
- Court appointed Deputies – Deputies can be appointed to take decisions on welfare, healthcare and financial matters as authorized by the Court of Protection. They are not able to refuse consent to life-sustaining treatment. They are only appointed if the court cannot make a one-off decision to resolve the issue.
In order to administer the powers and functions described above, a new Court of Protection has been created which has jurisdiction relating to the whole Act. The court can make declarations, decisions and orders affecting people who lack capacity and make decisions for, or appoint Deputies to make decisions on behalf of, people lacking capacity.
A Public Guardian who has several duties under the Act has also been created. The Public Guardian and his staff is the registering authority for LPAs and Deputies. He supervises deputies appointed by the court and provides information to help the court make decisions. He works together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an Attorney or Deputy is operating.
The Act makes several other important provisions:
- It creates the role of Independent Mental Capacity Advocate (IMCA) who is instructed to support a person who lacks capacity and has no one to speak for him, such as family or friends. They have to be involved where decisions are being made about serious medical treatment or a change in the person’s accommodation where it is provided, or arranged, by the National Health Service or a local authority, and may be involved in abuse cases. The IMCA makes representations about the person’s wishes, feelings, beliefs and values and brings all relevant information to the attention of the decision maker. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.
- It enshrines in Law the ability of individuals to make Advance Decisions to refuse treatment. The Act sets out the two important safeguards of validity and applicability in relation to Advance Decisions. An Advance Decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands ‘even if life is at risk’ which must also be in writing, signed and witnessed.
- The Act introduces the criminal offence of ill treatment or wilful neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years.
- The Act describes clear principles that should be applied in relation to the involvement of those who lack capacity in medical research.
Respecting patient autonomy
As a rule, a patient or his Attorney have the right to refuse treatment for any reason whatsoever. However, this general rule does have exceptions.
An attorney refusing treatment
Attorneys must exercise their power to give or withhold consent for the treatment of the patient in his best interests, not their own. They may withhold consent for any number of reasons. If the patient suffers from a terminal condition, they may decide that he would not benefit from further painful treatment which only has a slim chance of prolonging life. Whether that decision is the right one must be judged from the standpoint of what is best for the patient.
So what happens, when an attorney for whatever reason refuses the treatment suggested for the patient against the doctor’s advice? If it is confronted with this situation, through the Trust’s solicitors, the Trust should apply to the Court for an opinion. In making its decision, the Court will look at the best interests of the patient; his welfare will be of paramount concern. If this scenario arises on a doctor’s watch, then he should contact the Trust’s solicitors immediately. They may be able to make an application to the Court and obtain a decision within a matter of hours if necessary in an urgent situation. In the meantime, treatment may proceed according to the treating doctor’s perception of best interests if it is urgent and cannot be deferred.
A patient without capacity refusing treatment
A competent adult can refuse any treatment for himself, no matter how vital. Where the patient is not judged competent, treatment can proceed if it is in his best interests. However, it is best practice for such decisions to be taken in conjunction with the patient’s family and carers (as advocates) or in the absence of such, an Independent Mental Capacity Advocate (IMCA). The capacity of the patient and the need to involve advocates will vary according to the nature of the proposed intervention, its urgency and the consequences of not undertaking the intervention.
Emergency treatment
In an emergency, a doctor will be within his rights to treat a patient in his best interests if he lacks capacity to consent. Such treatment is justified by the legal doctrine of necessity as restated in the Act.
Information to be provided
Consent to treatment should be an expression of patient choice. But if a doctor does not give the patient sufficient relevant information concerning the proposed treatment, then the choice he makes will not be properly informed. This will invalidate any ‘consent’ or agreement to treatment and lay the doctor open to legal criticism and a potential claim. Such an error will surface, as far as the law is concerned, when the treatment for which ‘consent’ was given ends in a poor outcome. It is at that point that a patient or family could raise concerns about the consent process.
In terms of the information to be given, a doctor’s duty is defined by the terms of the Bolam test for negligence. In other words, he is to give the information regarding risks, side effects and consequences that is thought appropriate in the circumstances by a reasonable or responsible body of fellow physicians. Doctors commonly think that there is no need to warn of risks that have a less than 1% chance of occurring. In some cases, this may be good practical advice as a rule of thumb, but it is not an accurate reflection of the law. A doctor should always assess the individual patient and the condition in order to gauge what information they require and identify any patient specific risks, for example impaired eye sight in one eye prior to procedure. In such a case, rather than just quoting the procedure specific risks, the risks for the individual patient are greater as he already has impaired eyesight in one eye should there be adverse outcome.
The decision as to what risks a doctor should mention depends on a balancing of the benefits of the procedure and the risks. One matter that is of concern to clinicians generally is that if they advise of all the risks, then this will unnecessarily discourage their patients from undergoing procedures. Whether this is a valid consideration will depend on the circumstances of the case. If a procedure carries a less than 1% chance of paralysis, it may still be advisable to warn of this risk if the operation is designed to alleviate a slight discomfort. But there may be no need to warn patients of this small risk if the operation is an urgent life-saving procedure.
On a more practical level, a clinician should try to explain the nature of the procedure or treatment, the effect of no treatment and what other treatment options are available in terms that the layman can understand. He must attempt to communicate effectively. That does not mean to say that he will necessarily be successful.
Nowadays, many surgical procedures come supported by lengthy booklets and videos explaining the nature of the operation, its purpose and its risks. Judges have commented, however, that such booklets seem to be drafted in order to prevent litigation rather than from a desire properly to inform the patient. It is certainly true that these booklets in themselves do not prove that the patient has given valid consent. The treating clinician must still discuss the procedure with the patient and his advocates to ensure that they sufficiently understand its nature, purpose, benefit and risks.
Similarly, just because patients have signed a consent form saying that they understand the operation and its risks, it does not necessarily mean that they have received adequate information. At best a signature is only an indication that consent may have been given. In England, Department of Health guidance requires that the national Consent to Treatment Forms are completed and signed by the patient and doctor prior to a treatment where the patient will be under general anaesthetic. Consent to minor procedures or tests does not always need written consent. A patient’s consent for minor procedures not requiring a general anaesthetic can be implied from the actions of a patient. So if a patient holds out his arm for an injection, the doctor can infer that he has given his consent for the injection to be administered.
As a general comment, the issue of consent is a complex area of law. The GMC has published guidance in the form of a booklet entitled ‘Consent: Patients and Doctors Making Decisions Together’. The actual process for obtaining patient consent can itself often be the basis of a legal claim. If the recommended DOH consent process is not followed it can lead to allegations of failure to obtain informed consent and failure to advise the patient of the associated risks.
Deprivation of Liberty Safeguards
The provisions of the Mental Capacity Act 2005 include the Deprivation of Liberty Safeguards (DOLS) that focus on vulnerable people within society who, for their own safety and in their best interests, may need to be accommodated under care and treatment regimes for which they lack the capacity to consent. Such regimes may have the effect of depriving them of their liberty.
Under DOLS, the Managing Authority (a care home or an NHS Trust) must apply to the Supervisory Body (the Local Authority or PCT respectively) for authorization of Deprivation of Liberty (Standard Authorization). The Managing Authority can award itself authority to deprive an individual of liberty for up to seven days if the need is urgent and where Standard Authorization has been applied for but not yet granted.
The Supervisory Body commissions a series of best interest and medical assessments and either grants or refuses authorization. The standardized assessments are carried out by specifically trained health or social care professionals (Best Interests Assessors), who cannot be directly involved in the care of the patient, and specially trained doctors with expertise in mental health (Medical Assessors), who can know the patient.
Confidentiality
‘Whatever I see or hear, professionally or privately, which ought not to be divulged, I will keep secret and tell no one’: these words are those of Hippocrates. They form part of his oath and are still an important element of the doctor/patient relationship. Hippocrates simply gives voice to the fact that a full history is an essential requirement for diagnosis and treatment and the patient must feel able to tell his doctor everything relevant to his condition, even the most embarrassing and personal details, without fear that those details will be divulged to others. Updating the words of Hippocrates and putting them in legal terms, a doctor owes a duty of confidentiality regarding information about his patient or others acquired in his capacity as a doctor. This duty applies whether the information comes from other people or from the patient himself.
If a doctor breaches this duty of confidentiality, then he could be sued for damages, but more likely he will be reported to the GMC. As far as it affects clinicians, the law concerning confidentiality is fashioned from a number of different sources. Primarily, there is the common law duty of confidence (constructed from court judgements). In the last few decades, this has been supplemented by a number of Acts of Parliament: namely, The Access to Health Records Act (1990), The Data Protection Act (1998) and The Human Rights Act (1998). These different elements combine to create a more or less coherent whole. What we have set out below represents an outline of this legal framework.
Starting with the basics, a doctor can disclose information to others, if he has the patient’s consent. But consent can be implied. Most patients understand that a doctor will share information about them with other members of the healthcare team. In other words, the doctor can assume that he has the patient’s implied consent to do this.
This may seem obvious, but a doctor should, where appropriate, consider just how far this implied consent extends for any given course of treatment. It may not extend to highly personal details about the patient that he has learned in treating some other, previous illness. The doctor in charge of the team should consider what information it is necessary to disclose, when treating the patient. If he discloses information of a highly personal nature to the members of his team, then he should make it clear that the information is disclosed to them in confidence. He should also tell the patient and/or the family that the information has been shared with other members of the team.
Disclosure without consent
There are a number of circumstances in which a doctor can legitimately disclose patient information to another without the consent of the patient:
- Abuse or neglect: Where the doctor believes that the patient may be the victim of abuse or neglect and the patient is unable to give or withhold consent for disclosure, then the patient’s health is of paramount importance and he may disclose his belief to an appropriate, responsible person.
- Statutory obligation: A doctor is required to notify the appropriate authorities, if he attends upon someone suffering from certain infectious diseases, or known or suspected to be addicted to controlled drugs.
- Public interest: A doctor may disclose patient information, if he believes that the patient presents a real risk of danger or serious harm to the public. For example, a patient who is thought or known to be driving a motor vehicle whilst prohibited from doing so through ill health. Likewise, if a doctor believes that a patient’s mental instability could manifest itself in extreme violence to others, then he may disclose this belief to the proper authorities.
- When ordered by the court to do so: A doctor should not assume that simply because a lawyer or some figure of authority, such as a police officer, asks for disclosure of the patient’s records, they are entitled to see the medical records. He should only disclose the records, if the patient has consented or the court has ordered disclosure and a copy of the written court order has been supplied.
Caldicott Guardians
Each NHS Trust should employ a Caldicott Guardian. His role is to ensure that patient information is dealt with in an appropriate fashion and that there are systems in place to ensure that all clinicians and the Trust generally respect the duty of confidentiality that exists between them and the patients that they serve. Therefore, he should be a first port of call, if an issue arises concerning the use of confidential information.
Much of the work of the Caldicott Guardian relates to compliance with statutory obligations. It would be useful to take a look at some of those requirements.
Data Protection Act 1998
Generally speaking, patients seek disclosure of their records under the Data Protection Act 1998. It is most frequently ‘used’ for this purpose. However, disclosure of records represents only a small part of its purpose. Most importantly it sets out rules for what it describes as the ‘processing’ of ‘personal data’: in the context of medical records and treatment, read ‘use’ of ‘medical records and information’.
In summary, the Data Protection Act 1998 describes the principles of data protection in the following terms:
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