Police officers can exert considerable pressure on NHS staff to disclose confidential patient information. A thorough understanding of professional guidance and best practice is essential in order to avoid criticism or legal action.
Do the police have a right to patient information?
The police may request voluntary disclosure of a patient’s health records if they do not have a warrant or a court order. Although it is an offence to obstruct the police in the execution of their duty, the police have no automatic right to confidential patient information and disclosure should not take place unless the patient consents to disclosure, it can be justified in the public interest or is required by law.
Is the request urgent?
If there is sufficient time the police should be asked for a formal request which can then be passed to the appropriate person in the organisational team to deal with and take forward. If there is an immediate risk of harm to an individual’s safety, or if the matter is clearly urgent in some other way a request may be verbal or via a faxed request.
Is the request necessary?
The police should explain the purpose of the disclosure and why the information is necessary and proportionate to achieving this purpose. It may not be necessary to disclose all of a patient’s records and information that is not relevant can be blocked out.
Does the patient consent to disclosure?
If a patient has capacity they should be asked if they consent to information being disclosed to the police unless:
- They are suspects in a criminal investigation and obtaining their consent may compromise the investigation
- Seeking their consent may provoke a violent response.
Any consent obtained from a patient should be given freely and patients need to be informed as to how identifiable information about them is used. The patient should be asked what they think the impact of any disclosure might be on them. Explicit consent should be obtained in writing.
If a patient lacks capacity, the Mental Capacity Act applies and disclosure could be justified if it is in the best interests of the patient.
In all instances, compliance with wider legislation such as the Data Protection Act 1998 must also be considered.
In November 2010, the Department of Health issued additional guidance aimed at helping healthcare professionals make decisions about when to disclose information in the public interest.
Personal information may be disclosed in the public interest “in order to prevent and support detection, investigation and punishment of serious crime and/or to prevent abuse or serious harm”.
There is no legal definition of serious crime but it includes serious physical or psychological harm to individuals. The guidance recognises the grey area that arises in making such a judgement and advises that it may be helpful to have an anonymous discussion with colleagues in order to reach an appropriate decision.
In considering whether to disclose confidentially sensitive information to the police, staff should consider the following:
- Extent of the information to be disclosed
- The nature and impact of the crime or harm justifying the disclosure
- Whether the disclosure is for the detection or prosecution of crime or harm to others or whether it is preventative?
- Is there a statutory requirement or barrier to disclose the information?
- Balance the public interest in disclosure e.g. prevention/detection of a serious crime against the private and public interest in maintaining patient confidentiality.
Ultimately health professionals must objectively assess public interest on a case by case basis.
There are some specific circumstances in which there are statutory requirements to assist the police. The police should be asked to state under which legislation disclosure is sought. Examples of statutory disclosures where health professionals are required by law to disclose to police are:
Road Traffic Act 1988
Health professionals must provide to the police, on request, any information which may identify a driver alleged to have committed a traffic offence. The Road Traffic Act 1988 allows police to require the public to be breathalysed or to provide a urine or blood sample.
Prior to any samples being taken if a patient has capacity he must provide his consent. If the patient refuses to give consent the police will inform the patient that they are committing an offence.
If the health team consider that any samples taken from the patient may compromise the proper care and treatment of the patient, access can be denied.
If the patient is unconscious and unable to give consent samples can be taken by the police surgeon but should not be tested until the patient is able to give permission for its processing in a laboratory.
Terrorism Act 2000
All citizens, including health professionals must inform police as soon as possible of any information that may help to prevent an act of terrorism or help in apprehending or prosecuting a terrorist.
Disclosure without consent
If a health professional is considering disclosing health records without consent, the records should be reviewed by the clinician in charge of the patients care. A discussion with colleagues should take into account the following factors:
- Damage to the relationship between the health professional and the patient.
- Impact of the patient ending the relationship
- Risk of breakdown of trust between the patient and the NHS
- Risk of loss of confidence amongst the public as to the confidentiality of the NHS services.
- Whether this is compliant with statutory legislation (for example the Data Protection Act 1998)
- The reasons for and against disclosure
- Likely risks of litigation for any potential breach of confidentiality.
If a decision is made to disclose without consent, the information should be given to the most appropriate accountable person to minimise the impact on the individual. Consideration should be given to whether the recipient is likely to disclose the information further and whether it is appropriate to place conditions of disclosure to limit any damage.
Refusal to disclose
There may be circumstances when a health team decide not to disclose patient information. It is essential that whatever decision is taken, the health professional can justify the decision and has clearly documented the process of decision making. The police may seek an order from a judge or a warrant for the disclosure of confidential documents. The decision making process and documentation around this will be helpful in feeding into any court process.
Making decisions about when to share confidential information with the police can often be difficult and stressful.
In relation to any decision the issues and grounds of disclosure need to be considered, if appropriate debated and then clearly documented in the notes.
There is currently no centralised monitoring of the way in which decisions are taken. This means that there is no mechanism to ensure that knowledge of decision taking in this area can be collated and disseminated at a national level.
Bevan Brittan has substantial experience in advising healthcare
professionals in connection with the disclosure of confidential
information to third parties. If you would like to discuss
any of the issues raised in this article, please contact