An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

It is not uncommon to receive a request from the police for patient data. Recently, we admitted a patient who had suffered an injury at home, and it was thought not to have been an accident. Their partner was in police custody, awaiting a court’s decision on bail the following day.

The patient, at the time of the police enquiry, was intubated and ventilated, lacking capacity to decide whether to consent to the disclosure of their clinical details. What should our position be in these circumstances?

Sixty years ago, Lord Denning made it clear that there is no general obligation for clinicians to disclose confidential information following a request from the police. Naturally, a constable can always approach a court in the face of our refusal; it would be most unlikely that an NHS trust would refuse to comply with a court order to disclose.

The Department of Health (DH) suggest that doctors should consider disclosure if, amongst other considerations, the alleged offence is grave, and the prevention or detection of crime would be prejudiced or delayed but for prompt disclosure.

Clinicians must disclose to the police any information identifying a driver alleged of committing a traffic offence, and even in the absence of a police request, their suspicions of a person’s involvement in terrorist activities. Less specifically, doctors must disclose to the police the admission of a person wounded by a knife or gun, so that at least the constabulary is made aware of an armed assailant in the neighbourhood. Whether the stabbed or shot person allows subsequent disclosure of their identity rather depends on their capacity at the time. Naturally, if the patient consents to disclosure no problem occurs. But some victims of assault may choose to remain silent, perhaps fearing more grievous injury if they become identified as an informer.

The patient who lacks capacity poses a more difficult problem. If it seems likely that they will soon regain the ability to make their own decision, it would be prudent to await that recovery. If there is evidential material that could be lost during the time that lapses, such as clear scars or bruises or footprints, by all means have these images recorded, but await the patient’s capacitous consent before handing them to the police. At the other extreme, if the patient is unlikely to recover capacity after an assault, a grave offence may have transpired, making disclosure in the absence of consent more palatable.

If there is a simple stark binary choice between either respecting a person’s confidentiality or protecting them from death or serious harm, most clinicians would likely value life and limb over a notion of confidences. Guidance from the DH suggests that unlawful killing, rape, treason and child abuse could all cross the ‘serious harm’ threshold. By contrast, theft, fraud and criminal damage would not.

The leading case is of Dr Egdell, a psychiatrist instructed by W, a patient who had killed five people with extreme violence. W was seeking review of his secure hospital order, and hoped that Dr Egdell would provide a favourable report of his mental health. On the contrary; Dr Egdell found that W was highly dangerous, fascinated by high explosives. And that the secure hospital’s staff were oblivious to the threat W continued to pose.

Faced with the unhelpful report, W’s solicitors did not pursue the application to the Mental Health Tribunal, but Dr Egdell felt his report should nonetheless go to the Home Secretary, and the medical director of the hospital. W disagreed. In subsequent litigation the Court of Appeal held that this disclosure in the teeth of W’s capacitous opposition was justified and in the public interest. The breach in confidentiality was made lawful by the real risk of serious harm to others should W be released.

Frustratingly, the paucity of cases provides us with no further judicial gloss on this clinical dilemma.

So what to do with our patient who may have been injured by their partner?

It seemed possible they would soon regain capacity, so we declined to disclose their clinical details, awaiting events. The police did not seek assistance from a court to insist on the release of the records. This in itself hinted that even with the clinical notes, the police had cause to believe that their case would not stand up in court, for other reasons. Accordingly, it reinforced suspicions that dispensing with our patient’s confidentiality was unjustified.

The patient regained capacity, and promptly refused to cooperate with the police. In turn, faced with a single ‘hostile’ witness to the events on the stairs, the Crown Prosecution Service did not start court proceedings.

Domestic violence plagues society and, for the victims, it must be a constant source of profound anxiety admixed with intervals of terror, fearing for their lives. Any reasonable clinician would wish to break that cycle of violence and oppression for a patient. However, because of our fiduciary duty to maintain confidentiality, patients will always be able to rely on our hospital as a safe sanctuary, knowing that we will not betray them by turning them into unwilling informants.

Robert Wheeler
Department of clinical law
September 2020

Passing patient information to the police