Introduction
The British Medical Association (BMA) asserts that confidentiality is central to trust between doctors and patients. Indeed, it holds the view that without assurances about confidentiality, patients may be reluctant to seek medical attention or to give the key information needed in order to provide good care (BMA 2009a). This is equally true of the midwife and woman relationship. It is a complex issue that requires continuing critical analysis and debate in order to understand ethical and legal principles and professional codes of practice (Gallagher & Hodge 2012).
Patient information is generally held under legal and ethical obligations of confidentiality (DH 2010). From professional, legal and ethical perspectives, information provided to the midwife by her clients in confidence should not be used or disclosed indiscriminately. This particularly applies to disclosure in a form that might reveal the identity of the client who may not have consented to this revelation about her. The Health Professional Council (HPC; now known as the Health Care Professionals Council) tells health professionals that information must be treated as confidential and used only for the purpose for which it has been provided (HPC 2008).
It is prudent to be aware from the first day as a student midwife onwards that the patient is entitled to confidentiality of information about her (Dimond 2006). Historically, midwives have enjoyed an enviable position in their relationship with women and their families. In whatever setting she works, mutual trust and respect for the individual are key requirements for the job of midwife. Her sensitivity and openness are axiomatic to her feelings of worth and enhancement of job satisfaction.
In no other aspect of the role of the midwife are these principles more relevant than in the concept of confidentiality. The midwife’s personal and professional philosophy around right and wrong, the position she holds around advocacy and other ethical issues that influence the interaction between client and professional will stand her in good stead. Alternatively, her ethical principles may cause tensions that could inhibit the possibility of a smooth pathway in dealings with clients, their families and the wider community.
Personal belief systems will be brought by the student midwife into her chosen profession. These can be modified and possibly change as she engages in education and training activities and as the highs and lows of professional life are experienced. Deeply entrenched personal beliefs and values are extremely difficult to change as they form the core self of the person. The individual can feel threatened and challenged by the constraints of professional life as these might require her to think, act and even conform in ways that are unfamiliar. Indeed, it is important for practitioners, including midwives, to be aware that their perceptions, ideas and beliefs will determine the way they act towards others. However, the midwife has a duty of care to the woman, her unborn child, the child following birth and for some clients’ partners. In order to achieve the professional, ethical, legal and contractual requirements around confidentiality, the midwife will need to be receptive to continuing change. She must be ever consciously aware of the depth of responsibility to clients, her employer, the Nursing and Midwifery Council (NMC) and the community to uphold confidentiality. There are exceptions to absolute confidentiality – for example, the breach of confidentiality in the public interest. Indeed, the BMA states that confidentiality is an important duty but that it is not absolute (BMA 2009b). This and other exceptions will be discussed later in the chapter.
Confidentiality: the professional stance
The NMC (NMC 2008) holds a very firm position around confidentiality. It asserts that ‘registrants have a responsibility to deliver safe and effective care based on current evidence, best practice, and where applicable, validated research’. This must be based on the concept of confidentiality to ensure that the midwife/client relationship is strengthened through transparency, trust and mutual respect.
In your response to Activity 3.1, your definition of confidentiality may have included the following: Confidentiality covers information (private or sensitive) revealed to a chosen other but which is protected from being shared with others (McKeown & Weed 2002). The NMC (2008) also states that you must respect people’s right to confidentiality. You must ensure people are informed about how and why information is shared and you must disclose information if you believe someone may be at risk of harm, in line with the law of the country in which you are practising (NMC 2008). The NMC asserts that ‘a duty of confidence arises when one person discloses information to another in circumstances where it is reasonable to expect that the information will be held in confidence’ (NMC 2012).
How would you define confidentiality?It is inevitable and essential that clients will need to trust midwives with personal and confidential information. This is a significant matter and the client has every right to expect that information divulged will be kept in the strictest confidence. This means not sharing the information with a third party unless it was made explicit to the client, prior to them divulging the information, that it was likely to be shared. A rationale for why information may be shared should be given and consent sought.
Confidentiality is the principle of keeping records and information given by or about an individual in the course of a professional relationship secure and secret from others (Dimond 2006). It means that a professional must not disclose anything learned from a person who has consulted her, or whom she has examined or treated without that person’s agreement.
The essential nature of confidentiality for professional practice
It requires a huge amount of trust for a client to disclose private information to the midwife. Some women may have not previously shared these personal details about themselves with anyone outside their family and in some cases, possibly not with anyone, including their partner, until they have shared the information with the midwife.
The midwife is in a very privileged position and should understand the sensitive nature of her interaction with the client and must keep this information confidential.The NMC (NMC 2006, Clause 5) sets strict guidelines that enhance the understanding of the midwife’s role and responsibilities regarding confidentiality. The NMC states the following:
- You must treat information about patients and clients as confidential and use it only for the purposes for which it was given. As it is impractical to obtain consent every time you need to share information with others, you should ensure that patients and clients understand that some information may be made available to other members of the team involved in the delivery of care (for example, if an obstetrician has prescribed a particular treatment and the client refused to consent to the treatment then this information must be divulged to the obstetrician so that appropriate action can be taken). You must guard against breaches of confidentiality by protecting information from improper disclosure at all times. In the example given above, the midwifery practitioner would have complied with the employer’s policy and professional guidelines to facilitate proper disclosure of client information.
- You should seek patients’ and clients’ wishes regarding the sharing of information with their family and others. When a patient or client is considered incapable of giving permission, you should consult relevant colleagues, for example a midwifery manager or senior midwife.
- If you are required to disclose information outside the team that will have personal consequences for patients or clients, you must obtain their consent. If a patient or client withholds their consent, or if consent cannot be obtained for whatever reason, disclosures may be made only where:
- Where there is an issue of child protection, you must act at all times in accordance with national and local standards. These are based on legislative principles which give powers and duties to those involved in protecting children. The central standard being that the child’s welfare should be “paramount” in making decisions about her life and property (Kay 2003).
The NMC is therefore clear about the reasons why the midwife should uphold confidentiality and the way she must act so as to ensure this is achieved.
What does improper disclosure of information mean to you?In response to Activity 3.2, you might have begun by asking yourself the following questions.
- Who owns the records?
- What is the employer’s (work context) policy about disclosure?
- What does my professional body have to say about the issue?
- What is my personal/professional ethical position?
- What might the consequence(s) be if I disclose information?
The above are some of the questions to which you might seek answers to arrive at an understanding of the complex issue of disclosure of sensitive, private information from client to practitioner. It is important that the midwife understands that the duty of confidentiality exits to protect the client.
There are several possible responses to the scenario cited in Activity 3.3. One possible response may be to seek answers to the following questions.
You are a student midwife on duty on the postnatal ward. While you are at the midwifery station, a telephone call arrives from a man claiming to be the partner of Jane. He is enquiring about her and the baby’s well-being.- What questions do I need to ask the enquirer so as to clarify authenticity?
- Who do I need to consult before responding to this request?
- How much information do I need to give?
Additional information is required from the caller – for example, his name, relationship to Jane, how much information he already knows. It is important that Jane is consulted prior to divulging any information in order to confirm her relationship to the caller and in particular what, if any, information she would consent to be divulged about her and the baby. This checking is important because Jane should be the main decision maker in this instance. The student should document the communication between herself, the caller, Jane and any other personnel involved, date and sign the entry.
Whatever decision you have made about what may be considered as improper disclosure of information should be taken in the knowledge that the practitioner should not make a unilateral decision (NMC 2012). You should take into account that, for example, the records of information belong to the organisation where you work; if you work in the NHS, the records belong to the Secretary of State and not the professional staff who construct them (NMC 2007, 2009). The legal right to access information is not automatic. Clients have the right to request access to their records, whether hand held or computer generated. This right to their access is based on the Data Protection Act (1998), the Access Modification (Health) Order (1987), the Access to Health Records Act (1990), the Access to Health Records (North Ireland) Order (1993) and the Data Protection and the Freedom of Information (Scotland) Act (2000).
Procedures for access must be in accordance with the Freedom of Information Act (2000) and the Freedom of Information (Scotland) Act (2002), the Data Protection and Freedom of Information (Scotland) Act (2002) and all other relevant legal frameworks.
All these legal and professional frameworks are in place to ensure that the professional practitioner carries out their duties around client confidentiality in a knowledgeable and confident manner. Indeed, the midwife’s responsibility not to disclose confidential information is related to those who are alive and also to those patients and clients who are deceased.
The midwife is duty bound to keep information which she obtains from or about her clients confidential. The nature of her responsibilities is such that she should be aware that her contract of employment with the employer supports this view. The professional conduct proceedings of the regulatory body, the NMC and her client could all bring an action for alleged negligence if harm was caused as a result of the breach of her duty to maintain confidentiality or an action for an allegation for breach of trust.
It is important to note that the midwife is personally accountable for any disclosures made.To facilitate the midwife’s accountability and responsibility, the NMC (2006) in its guidance to midwives supports the view that they should ‘respect people’s confidentiality’ (NMC 2006). The client’s right to be informed about how and why information will be shared with the multidisciplinary team is mandatory. Should it become apparent that the midwife needs to divulge private and sensitive information to a third party, it must be made clear to the client, a rationale given and documented in the client’s records. In all instances, it is always necessary if possible to gain the client’s consent, and such an approach can facilitate and enhance the client/midwife relationship. Awareness of the complex nature of working collaboratively with members of the multidisciplinary team is worthy of note. The dual professional message of respect for client’s confidentiality and on the other hand keeping colleagues/team informed will require that the practitioner have a good working knowledge of her responsibilities and accountability. Any diversion from the acceptable standards could result in a breach of confidentiality which is a form of misconduct likely to cause removal from the professional register (NMC 2008).
In today’s working environment where technology plays a significant part in the communication channels, the midwife and student of midwifery can inadvertently divulge confidential information. Social networking is one such channel.
