An emergency department consultant called the MDU after being approached by the police during a shift. A patient who had been seen in the department that day had been arrested on suspicion of a serious assault, and the police were asking for details of the patient's attendance.
The patient lacked capacity and wasn't in a position to consent to or refuse disclosure of their personal information. The consultant knew from previous dealings with the police that as the patient was in custody - and therefore not a risk to the public - disclosure was unlikely to be justified in the public interest.
The police, however, explained that the patient clearly had mental health problems and was a risk to themselves. The police needed information so the patient could be appropriately assessed and, if necessary, treated.
The consultant had tried to contact the hospital's data protection lead, who had responsibility for patient confidentiality, but they were unavailable. As the police were pressing her for a response, the consultant rang the MDU for advice.
The adviser agreed that under normal circumstances, where a patient is in police custody, and regardless of the seriousness of the crime, their consent should be sought before information is disclosed.
It would be difficult to justify a breach of confidentiality in the public interest where a patient is not currently a risk to the public. However, this situation was slightly different in that the disclosure would be in the best interests of a patient who was unable to make decisions for themselves.
While in custody, the patient would need to be reviewed by a forensic medical examiner (FME) to establish what further management would be needed. The consultant confirmed to the adviser that the patient had paranoid schizophrenia and was often non-compliant with their medication and a frequent attender in the department.
The MDU adviser suggested that rather than disclose this information to the police, they speak to the FME directly, who would also have a professional duty of confidentiality to the patient, providing them with only the information that was absolutely necessary. This would allow the FME to arrange appropriate ongoing management and referral in a way that could be justified in the patient's best interests.
If the police requested information about the patient for their own investigations, this could be disclosed at a later date if the patient provided their consent or on the issuing of an appropriate court order and in discussion and in discussion with the hospital's data protection lead.
The consultant asked the police to arrange for the FME to make contact directly, which allowed her to pass on the necessary medical information to the FME so the patient could be treated.
Once the patient was well enough, and at the consultant's request, the police provided the patient's consent to disclose other information from the medical records to assist with the investigation. The patient had been unwell when committing the offence and was keen for the police to understand their mental health problems.
This dilemma is fictional but based on members' experiences and the types of calls we receive to our advice line.
This page was correct at publication on 29/06/2022. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.