Disclosing information for employment, insurance and similar purposes

Third parties, such as a patient’s insurer or employer, or a government department, or an agency assessing a claimant’s entitlement to benefits, may ask you for personal information about a patient, either following an examination or from existing records. In these cases, you should:

1. be satisfied that the patient has sufficient information about the scope, purpose and likely consequences of the examination and disclosure, and the fact that relevant information cannot be  concealed or withheld
2. obtain or have seen written consent to the disclosure from the patient or a person properly authorised to act on the patient’s behalf. You may accept an assurance from an officer of a government department or agency, or a registered health professional acting on their behalf, that the patient or a person properly authorised to act on their behalf has consented
3. only disclose factual information you can substantiate, presented in an unbiased manner, which is relevant to the request. You should not usually disclose the whole record,⁴³  although it may be relevant to some benefits paid by government departments and to other assessments of a patient’s entitlement to pensions or other health-related benefits
4. offer to show your patient, or give them a copy of, any report you write about them for employment or insurance purposes before it is sent, unless:
   1. they have already indicated they do not wish to see it
   2. disclosure would be likely to cause serious harm to the patient or anyone else
   3. disclosure would be likely to reveal information about another person who does not consent.^{44, 45} 

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:

1. satisfy yourself that personal information is needed, and the disclosure is required by law
2. only disclose information relevant to the request, and only in the way required by the law
3. tell patients about such disclosures whenever practicable, unless it would undermine the purpose of the disclosure to do so
4. 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, under the process of precognition disclosure, if you receive a precognition request, in some cases you will have a legal duty to share information, and in other cases disclosure would be voluntary and subject to the guidance at paragraph 9.³³ 

Confidential medical care is recognised in law as being in the public interest. The fact that people are encouraged to seek advice and treatment benefits society as a whole as well as the individual. But there can be a public interest in disclosing information to protect individuals or society from risks of serious harm, such as from serious communicable diseases or serious crime.²³ 

If it is not practicable or appropriate to seek consent, and in exceptional cases where a patient has refused consent, disclosing personal information may be justified in the public interest if failure to do so may expose others to a risk of death or serious harm. The benefits to an individual or to society of the disclosure must outweigh both the patient’s and the public interest in keeping the information confidential.

Such a situation might arise, for example, if a disclosure would be likely to be necessary for the prevention, detection or prosecution of serious crime, especially crimes against the person. When victims of violence refuse police assistance, disclosure may still be justified if others remain at risk, for example from someone who is prepared to use weapons, or from domestic violence when children or others may be at risk.

Other examples of situations in which failure to disclose information may expose others to a risk of death or serious harm include when a patient is not fit to drive,²⁴ or has been diagnosed with a serious communicable disease,²⁵  or poses a serious risk to others through being unfit for work.²⁶ 

When deciding whether the public interest in disclosing information outweighs the patient’s and the public interest in keeping the information confidential, you must consider:

1. the potential harm or distress to the patient arising from the disclosure – for example, in terms of their future engagement with treatment and their overall health
2. the potential harm to trust in doctors generally – for example, if it is widely perceived that doctors will readily disclose information about patients without consent
3. the potential harm to others (whether to a specific person or people, or to the public more broadly) if the information is not disclosed
4. the potential benefits to an individual or to society arising from the release of the information
5. the nature of the information to be disclosed, and any views expressed by the patient
6. whether the harms can be avoided or benefits gained without breaching the patient’s privacy or, if not, what is the minimum intrusion.

If you consider that failure to disclose the information would leave individuals or society exposed to a risk so serious that it outweighs the patient’s and the public interest in maintaining confidentiality, you should disclose relevant information promptly to an appropriate person or authority.

Decisions about whether or not disclosure without consent can be justified in the public interest can be complex. Where practicable, you should seek advice from a Caldicott or data guardian or similar expert adviser who is not directly connected with the use for which disclosure is being considered. If possible, you should do this without revealing the identity of the patient.

You must document in the patient’s record your reasons for disclosing information with or without consent.  You must also document  any steps you have taken to seek the patient’s consent, to inform them about the disclosure, or your reasons for not doing so.