Disclosing for education and training purposes
In our guidance Confidentiality: good practice in handling patient information we say:
77. Many important uses of patient information contribute to the overall delivery of health and social care. Examples include health services management, research, epidemiology, public health surveillance, and education and training. Without information about patients the health and social care system would be unable to plan, develop, innovate, conduct research or be publicly accountable for the services it provides.
79. Anonymised information will usually be sufficient for purposes other than the direct care of the patient and you must use it in preference to identifiable information wherever possible. If you disclose identifiable information, you must be satisfied that there is a legal basis for breaching confidentiality.
80. You may disclose personal information without breaching duties of confidentiality when any of the following circumstances apply.
a. The disclosure is required by law, including by the courts (see paragraphs 87 - 94).
b. The patient has given explicit consent (see paragraph 95).
c. The disclosure is approved through a statutory process that sets aside the common law duty of confidentiality (see paragraphs 103 - 105).
There are a large number of laws that require disclosure of patient information – for purposes as diverse as the notification of infectious diseases, the provision of health and social care services, the prevention of terrorism and the investigation of road accidents.
You must disclose information if it is required by law. You should:
- satisfy yourself that personal information is needed, and the disclosure is required by law
- only disclose information relevant to the request, and only in the way required by the law
- tell patients about such disclosures whenever practicable, unless it would undermine the purpose of the disclosure to do so
- abide by patient objections where there is provision to do so.32
You can find advice about disclosures that are permitted but not required by law in paragraph 19.
The courts, both civil and criminal, have powers to order disclosure of information in various circumstances. You must disclose information if ordered to do so by a judge or presiding officer of a court.
You should only disclose information that is required by the court. You should object to the judge or the presiding officer if attempts are made to compel you to disclose what appears to you to be irrelevant information, such as information about a patient’s relative who is not involved in the proceedings. You should also tell the judge or the presiding officer if you think disclosing the information might put someone at risk of harm.
If disclosure is ordered, and you do not understand the basis for this, you should ask the court or a legal adviser to explain it to you. You should also tell the patient whose information the court has asked for what information you will disclose in response to the order, unless that is not practicable or would undermine the purpose for which disclosure is sought.
You must not disclose personal information to a third party such as a solicitor, police officer or officer of a court without the patient’s explicit consent, unless it is required by law, or ordered by a court, or can be justified in the public interest. You may disclose information without consent to your own legal adviser to get their advice.
In Scotland, the system of precognition means there can be limited disclosure of information in advance of a criminal trial, to both the Crown and defence, without the patient’s explicit consent. You should cooperate with precognition, but the disclosure must be confined solely to the nature of injuries, the patient’s mental state, or pre-existing conditions or health, documented by the examining doctor, and their likely causes. If they want further information, either side may apply to the court to take a precognition on oath. If that happens, you will be given advance warning and you should seek legal advice about what you may disclose.33
You should ask for consent to disclose personal information for purposes other than direct care34 or local clinical audit unless the information is required by law, or it is not appropriate or practicable to obtain consent (see paragraph 14 for examples of when this might be the case).
In England, Wales and Northern Ireland, statutory arrangements are in place for considering whether disclosing personal information without consent for health and social care purposes would benefit patients or the public sufficiently to outweigh patients’ right to privacy. Examples of these purposes include medical research, and the management of health or social care services. There is no comparable statutory framework in Scotland.
Section 251 of the National Health Service Act 2006 (which applies in England and Wales) and the Health and Social Care (Control of Data Processing) Act (Northern Ireland) 2016 allow the common law duty of confidentiality to be set aside for defined purposes where it is not possible to use anonymised information and where seeking consent is not practicable. You can find more detail about these statutory arrangements in the legal annex.
You may disclose personal information without consent if the disclosure is permitted or has been approved under regulations made under section 251 of the National Health Service Act 2006 or under the Health and Social Care (Control of Data Processing) Act (Northern Ireland) 2016. If you know that a patient has objected to information being disclosed for purposes other than direct care, you should not usually disclose the information unless it is required under the regulations.40
You must also be satisfied that the other relevant requirements for disclosing information are met (see paragraph 10).1
When disclosing information about a patient you must:
- use anonymised information if it is practicable to do so and if it will serve the purpose
- be satisfied the patient:
- has ready access to information explaining how their personal information will be used for their own care or local clinical audit, and that they have the right to object
- has not objected
- get the patient’s explicit consent if identifiable information is to be disclosed for purposes other than their own care or local clinical audit, unless the disclosure is required by law or can be justified in the public interest
- keep disclosures to the minimum necessary for the purpose
- follow all relevant legal requirements, including the common law and data protection law.5
About this guidance
The use of information about patients is essential to the education and training of medical students, doctors in training and other healthcare students and trainees. This explanatory guidance sets out how the general principles in our guidance Confidentiality apply in the particular context of education and training.
For most education and training uses, anonymised information will be sufficient and must be used whenever practicable. If it is necessary to use identifiable information about a patient, or it is not practicable to anonymise information, you should usually ask for the patient’s explicit consent before disclosing it to anyone who is not part of the team that is providing or supporting the patient’s direct care. You should make sure that the patient is under no pressure to consent. In particular, you should avoid any impression that their care depends on giving consent.2
Teaching and training of medical students, doctors in training and other healthcare students and trainees
Most patients understand and accept that the education and training of medical students, doctors in training and other healthcare students and doctors in training relies on them having access to information about patients. If doctors in training or medical or healthcare students are part of the team providing or supporting a patient’s direct care,3 they can have access to the patient’s personal information, just as other team members do, unless the patient objects.4
In this guidance, ‘direct care’ refers to activities that directly contribute to the diagnosis, care and treatment of an individual. The direct care team is made up of those health and social care professionals, who provide direct care to the patient and others, such as administrative staff, who directly support that care.
If the doctor or student is not providing or supporting the patient’s care, anonymised information should be used for education and training purposes whenever practicable. This may not be achievable, for example, on ward rounds, but it will then usually be possible to seek the patient’s explicit consent to disclosure.
In some cases it might be necessary to disclose personal information, or it might not be practicable to anonymise it or to ask for a patient’s consent. In such cases you may disclose relevant personal information to medical students, doctors in training and other healthcare students and trainees, as long as you are satisfied that information has been made readily available to the patient about the disclosure and of their right to object, and they have not objected. You must also be satisfied that they understand that the information is given in confidence, which they must respect.
Patients who lack capacity
You should not disclose personal information for education and training purposes about patients who lack capacity if you can use information about other patients instead.
If you wish to disclose personal information about a patient who currently lacks capacity (for example, because they are acutely unwell), but who is likely to regain capacity, you should wait and ask for their consent later if you can.
If you are asked, or want, to disclose information about a patient who lacks capacity, you should seek the views of anyone the patient asks you to consult, or who has legal authority to make decisions on their behalf,5 or who has a close personal relationship with the patient. They may be able to give you an indication of the patient’s previously expressed preferences, views and beliefs.
Welfare attorneys, court-appointed guardians and court-appointed deputies have legal authority to make some decisions on a patient’s behalf. For disclosure in the public interest, you will be seeking their views about the patient’s preferences, rather than their consent to disclose.
In the absence of any indication about the preferences of a patient who lacks capacity, you should not publish information that could identify that patient. In exceptional cases, however, you may disclose relevant personal information to medical students, doctors in training and other healthcare students and trainees if it is necessary for their education and training. You must be satisfied there is no reasonably practicable alternative to using personal information, and you should have no reason to believe that it is contrary to the interests of the patient to do so.
Disclosing information to secondary school and college students
Doctors are sometimes asked to provide work experience for secondary school or further education college students, which may include allowing them to be present during consultations with patients.
You should ask for the patient’s explicit consent to a student observing their care. You should also satisfy yourself that the student’s presence does not adversely affect the patient’s care, for example by inhibiting frank discussion.
You should satisfy yourself that the student understands the importance of respecting confidentiality and that their school or college takes seriously its responsibilities for its students’ conduct.6
Practical guides on arranging work experience have been published in Wales, Enabling work experience in the health sector in Wales (Careers Wales, 2012), and in England, More than photocopying: Work experience - a toolkit for the NHS (Health Education England Careers, 2015).
Training records and case studies
You must anonymise patient information in training records and case studies as far as it is possible to do so. The anonymisation code of practice published by the Information Commissioner’s Office considers data to be anonymised if it does not itself identify any individual, and if it is unlikely to allow any individual to be identified through its combination with other data.7 Simply removing the patient’s name, age, address or other personal identifiers is unlikely to be enough to anonymise information to this standard.8
The Information Commissioner’s Office (ICO) provides an anonymisation code of practice.
Other potential identifiers include the patient’s initials, postcode, NHS or CHC number, local identifiers (such as hospital numbers), national insurance number, and key dates (such as birthdate, date of diagnosis or date of death).
If it is difficult to anonymise information about patients while retaining enough detail to make a training record useful, or if it is necessary to include potential identifiers to allow the record to be audited, you should ask for the patient’s consent to use their information if you can. If it is not practicable to seek the patient’s consent, you may use potentially identifiable information in a training record as long as you are satisfied that the record will be kept securely and will be managed in accordance with other data protection requirements. You must still remove as many identifiers as you can.9
If the information is likely to be more widely accessible (for example, in discussion at a seminar or conference, or published in a journal), and you consider that the patient could be identified, you should usually use the information only when you have the patient’s explicit consent.
When asking for the patient’s consent, you must give the patient enough information about the nature and purpose of the disclosure to enable them to make an informed decision. This should include a description of the information to be disclosed and an indication of who will have access to it and how it will be used.
You may disclose information only for the purposes for which the patient has given consent, and you must remove as many identifiers as you can. You must respect a patient’s refusal to consent to the publication of their identifiable information.
If for any reason you cannot get a patient’s consent – for example, because the information you want to disclose is so old that efforts to trace the patient have been or are likely to be unsuccessful – you will need to consider whether disclosing potentially identifiable information can be justified in the public interest. You should seek advice from a Caldicott or data guardian or a legal adviser, who is not directly connected with the use for which the disclosure is being considered, before disclosing personal information without consent.