Confidentiality and court cases involving children

Discussing or publishing information you learn during a court case involving children may attract a charge of contempt of court, and possibly a GMC hearing.

This can also apply to using the information in peer review or reflective learning on child safeguarding.

  • Do not publish information you know solely because of your involvement in family law proceedings (in this context 'publish' has a broad meaning and involves written and oral communication).
  • The only exception may be disclosure for child safeguarding purposes.
  • If in doubt, seek direction from the judge on what you may disclose.

Doctors are often asked to act as professional witnesses, witnesses of fact or independent experts in court. Cases where a child is involved are subject to the very strict statutory rules on confidentiality that apply to all family proceedings.

Typically, such cases will be heard in the High Court or County Court and may relate to the child's:

  • residence
  • wellbeing
  • contact with other family members
  • matters concerning parental responsibility.

Family proceedings are held in private and information about the case cannot be disclosed or published. Disclosure could amount to contempt of court, which is a criminal offence and would be reported to the GMC.

There are specific, closely-defined exceptions to the strict requirement for privacy.

Disclosure of information as part of a safeguarding obligation would not amount to a contempt of court, providing all that is discussed is clinical  i.e. not the court proceedings.

Peer review: the pitfalls

It is clear that the courts do not want to impede the proper procedures for protecting children from harm or abuse. A difficult question can arise as to how certain discussions that relate broadly to safeguarding and learning the lessons from it will be treated by the courts.

An example might be discussions surrounding peer review in safeguarding cases.

The GMC's guidance states that all doctors who work with children should have the knowledge and skills to identify abuse and neglect and that they must maintain their knowledge and skills. This may be through feedback from audits, case discussions, supervision and peer review.

The Royal College of Paediatrics and Child Health (RCPCH) advises that it is a core competency for all clinical staff who work with children to regularly review practice, including peer review.

The aims and objectives of peer review meetings are to retrospectively review cases, the documentation of clinical evidence and how the agencies worked together, in order to promote quality improvement and maintain high clinical standards.

Peer review is also viewed by the RCPCH as a mechanism to provide training in a suitable environment and to debrief following difficult cases.

The protection attracted by family proceedings will be breached if someone publishes:

  • accounts of what has gone on in front of the judge sitting in private
  • documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence of submissions, and transcripts or notes of the judgment prepared for the purpose of the proceedings
  • extracts or quotations from such documents
  • summaries of such documents
  • information that has emerged during the course of information gathering for the case.

These apply whether or not the information or the document being published has been anonymised.

It can be easy, therefore, to inadvertently discuss matters with clinical colleagues that you should not.

The MDU advises doctors who are involved in family proceedings to be very cautious about the precise source of information that they might choose to discuss and reflect upon as part of peer review or other training or learning.

MDU advice

Do not discuss or publish information that you know or have in your possession solely because of family proceedings. This will include statements prepared for the court, evidence given in court by any person, including yourself, court transcripts and comments or directions given by the judge.

The only times it may be permissible to discuss what has occurred in court is where the disclosure of information is necessary for child protection purposes and it will be shared with an appropriate person or authority who is required to take action to safeguard children, or when the court explicitly allows specified information to be published.

Continue to take part in peer review, audit and all reflective learning and training required to maintain your skills in safeguarding. But ensure that your discussions are limited to what is in the clinical records, or in documentation that is not connected in any way with family proceedings relating to the child.

If you have any doubt about what you may discuss outside of court during the course of giving your evidence, seek directions from the judge.

If you have any difficulties, seek advice from the MDU. Remember, though, that the privacy rule applying to family proceedings will apply to what you can disclose to us as well.

 

This guidance was correct at publication 05/10/2017. It 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.

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