Call the police or social services to tell them that a serious assault has been committed?
Dr Peters' second patient is Sylvia. She has come for a routine check-up about the management of a chronic condition which can affect her mobility during particularly bad episodes. Sylvia has previously confided in Dr Peters about her partner, Therese, who is an alcoholic and has been violent towards her on several occasions. Sylvia was recently hospitalised after one such attack and spent several days in a women's refuge but she returned home to Therese a few days ago.
Dr Peters, who works in a sexual health clinic, has to decide whether or not to disclose confidential information
I think we'll up the dose again and bring you in for a further test in about two weeks' time if that's okay with you. But Sylvia I'm worried about you going back home so soon. Are you sure you're going to be okay?
Oh Therese isn't that bad really...it's only when she drinks and I can usually keep out of her way.
But you're still at risk, especially if you're in the middle of a bad episode. You were injured quite badly last time when she threw that bottle at you. What if Therese is violent in the next few weeks when you're feeling weaker?
I can handle myself okay, Dr Peters. I was feeling pretty rough yesterday but I still managed to defend myself - I guess the adrenaline kicks in doesn't it? "Fight or flight" and that.
You mean she attacked you again yesterday? Did you call the police? Sylvia you've only just got home again! I thought Therese promised to stop drinking - that's the only reason you agreed to go back isn't it?
She will, I'm sure. But it's not going to happen overnight. It's fine Dr Peters, really. You don't have to worry about me. And there's really no need to tell the police or anyone else - Therese and I can handle this by ourselves.
Despite his best efforts, Dr Peters was not able to persuade Sylvia to allow him to disclose details of the further attack to the police, or social services. He warned her of the risks of refusing to consent, but he did not override her decision because Sylvia has capacity to make the decision and, because Sylvia lives alone with Therese, nobody else is obviously at risk.
Before Sylvia leaves, Dr Peters makes sure she has information about support services in the area, including the refuge and a domestic violence support group as well as the local police's domestic violence team. He also makes a note on Sylvia’s record to follow up on their discussion at her next appointment in two weeks' time.
Guidance from Confidentiality: good practice in handling patient information (2017)
41. You must work on the presumption that every adult patient has the capacity to make decisions about the disclosure of their personal information. You must not assume a patient lacks capacity to make a decision solely because of their age, disability, appearance, behaviour, medical condition (including mental illness), beliefs, apparent inability to communicate, or because they make a decision you disagree with.
42. You must assess a patient's capacity to make a particular decision at the time it needs to be made, recognising that fluctuations in a patient's condition may affect their ability to understand, retain or weigh up information, or communicate their wishes.
52. As a rule, you should make decisions about how best to support and protect adult patients in partnership with them, and should focus on empowering patients to make decisions in their own interests. You must support and encourage patients to be involved, as far as they want and are able, in decisions about disclosing their personal information.
53. There are various legal requirements to disclose information about adults who are known or considered to be at risk of, or to have suffered, abuse or neglect [see Endnote 18]. You must disclose information if it is required by law. You should:
a satisfy yourself that the disclosure is required by law
b only disclose information that is relevant to the request, and only in the way required by the law
c tell patients about such disclosures whenever practicable, unless it would undermine the purpose of the disclosure to do so.
57. As a principle, adults who have capacity are entitled to make decisions in their own interests, even if others consider those decisions to be irrational or unwise. You should usually ask for consent before disclosing personal information about a patient if disclosure is not required by law, and it is practicable to do so. You can find examples of when it might not be practicable to ask for consent in paragraph 14.
58. If an adult patient who has capacity to make the decision refuses to consent to information being disclosed that you consider necessary for their protection, you should explore their reasons for this. It may be appropriate to encourage the patient to consent to the disclosure and to warn them of the risks of refusing to consent.
59. You should, however, usually abide by the patient's refusal to consent to disclosure, even if their decision leaves them (but no one else) at risk of death or serious harm (see also Endnote 19). You should do your best to give the patient the information and support they need to make decisions in their own interests – for example, by arranging contact with agencies to support people who experience domestic violence. Adults who initially refuse offers of assistance may change their decision over time.
Endnote 18. The requirements of the relevant Acts – the Adult Support and Protection (Scotland) Act 2007, the Social Services and Well-being (Wales) Act 2014 and the Care Act 2014 – are summarised in our key legislation factsheet [hyperlink].
Endnote 19. In very exceptional circumstances, disclosure without consent may be justified in the public interest to prevent a serious crime such as murder, manslaughter or serious assault even where no one other than the patient is at risk. This is only likely to be justifiable where there is clear evidence of an imminent risk of serious harm to the individual, and where there are no alternative (and less intrusive) methods of preventing that harm. This is an uncertain area of law and, if practicable, you should seek independent legal advice before making such a disclosure without consent.